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CITED   "E.   R.   C." 


(  OM'IM'ED    BY 


IBnttHlj  ISnlinn  (Eases 

CITED   "B.   R.   C." 


The  Extra  Annotations  following  this  volume 
should  invariably  be  examined.  They  give  every 
citation  of  the  cases  reported  in  this  volume  of 
E.R.C.  in  the  decisions  of  this  country  and  Canada, 
also  in  the  more  important  English  decisions,  indi- 
cating which  citation  the  exact  point  involved  a?id 
the  disposition  made  by  the  Court.  An  additional 
feature  is  the  atialysis  and  citation  of  these  cases  in 
the  leading  text  books  and  Annotated  Reports. 


fcngltelj  Kitting  (Eaa^s 


ARRANGED,  ANNOTATED  AND  EDITED 


ROBERT  CAMPBELL,  M.  A. 

OF  LINCOLN'S   INN 

ASSISTED    I!V    OTHEK    MEMBERS    OF    THE    BAR 

WITH  AMERICAN  NOTES 

BY 

IRVING  BROWNE 


VOL  I. 

ABANDONMENT— ACTION 


EXTRA  ANNOTATED  EDITION 
OF  1916 


ROCHESTER,  N.  Y. 

THE  LAWYERS  CO-OPERATIVE  PUBLISHING  CO. 

1916 


THE   USE   MADE   IN   THIS  WORK   OF  THE   LAW   REPORTS    PUBLISHED   BY  THE 

COUNCIL   OF   LAW   REPORTING    IS    BY    THE    PERMISSION"    OF    THE 

COUNCIL    KINDLY    GIVEN    FOR    THIS    PURPOSE. 


Copyright  1S94, 
By  Stevens  &  Sons,  Limited. 

Copyright  assigned  to  The  Boston   Book  Company,   1002. 
Copyright  assigned  to  The  Lawyers  Co-operative  Publishing  Company,    ions 

Copyright  1916. 
I'.v  The  Lawyers  Co-operative  Publishing  Company. 


PREFACE. 


It  is  proposed,  in  this  Work,  to  collect  and  arrange  in 
alphabetical  order  of  subjects,  the  leading  authorities  of 
English  Case  Law  on  points  of  general  interest,  and  to 
illustrate  their  application  by  English  and  American 
notes. 

The  matter  under  each  alphabetical  heading  will  be 
arranged  in  sections,  in  an  order  indicated  at  the  com- 
mencement of  the  heading.  The  more  important  and 
Ruling  Cases  are  set  out  at  length,  subject  only  to  abridg- 
ment where  the  original  report  is  unnecessarily  diffuse. 
The  less  important  or  subordinate  English  cases  are  briefly 
stated  in  the  English  Notes.  The  American  notes  point 
out  the  effect  of  American  authority  upon  cognate  points. 

Our  aim  is  to  furnish  the  practitioner  with  English  Case 
Law  in  such  a  form  that  he  will  readily  find  the  informa- 
tion he  requires  for  ordinary  purposes.  The  Ruling  Case 
will  inform  him,  or  refresh  his  memory,  as  to  the  prin- 
ciples ;  and  the  Notes  will  show  in  detail  how  the  prin- 
ciples have  been  applied  or  modified  in  other  cases. 

The  ordinary  English  Digests  fail  in  usefulness  by  their 
want  of  information  as  to  the  principles  of  the  decisions, 
and  as  to  the  relative  importance  and  authority  of  the 
cases  contained  in  them.     Comyns'  Digest  was,  indeed,  an 


IV  PREFACE. 

exception,  and  was  a  most  valuable  book  in  its  time.  But 
it  is  bewildering  in  arrangement,  and  largely  encumbered 
with  now  obsolete  matter. 

Collections  of  Leading  Cases  are  generally  fragmentary, 
and  wanting  in  any  system  of  arrangement.  Saunders' 
Reports  are,  however,  in  some  measure  a  precedent,  and  a 
suggestive  example  to  show  that  a  comprehensive  work  on 
somewhat  similar  lines  may  be  of  great  use.  The  object 
is  to  adapt  the  mass  of  existing  authority  to  modern 
requirements. 

The  object  of  the  American  notes  will  be  to  point  out 
the  agreement  or  the  disagreement  of  the  American  Case 
Law  with  the  English,  and  to  direct  attention  to  the  lead- 
ing and  the  most  recent  cases  in  all  the  States,  thus  com- 
mending the  work  to  the  American  as  well  as  the  English 
practitioner.  This  will  be  done  concisely.  The  principal 
citations  of  the  Ruling  Cases  in  the  American  reports  will 
be  given.  Reference  will  also  be  made  in  every  instance 
to  the  most  authoritative,  and  especially  to  the  latest, 
American  text-wTriters  on  the  subject  in  question. 

R.  CAMPBELL. 

IRVING  BliOWNE. 

March,  1894. 


TABLE   OF   CONTENTS. 

VOLUME  I. 


PAGE 

ABANDONMENT 1-155 

Section     1.  —  Cases  where  Abandonment  may  be  made  and 
Total  Loss  claimed. 

No.     1.    Goss  v.  Withers 1 

No.    2.    Allen  v.  Sugrue       \ 

No.    3.    Irving  v.   Manning/- 20 

No.    4.    Farnworth  v.  Hyde  ) 
Section    II. —  Where  Abandonment  is  necessary  in  order 
to  claim  Total  Loss. 

No.    5.    Fleming  v.  Smith 37 

Section  III.  —  Total  Loss  without  Abandonment. 

No.    6.    Roux  v.  Salvador 46 

No.    7.    Potter  v.  Rankin      1  ~~ 

(Rankin  v.  Potter)  > 

Section  IV.  —  Criterion  oe  Time  in  Cases  of  Abandonment 
and  Total  Loss. 
No.    8.    Hamilton  v.  Mendez    }  119 

No.    9.    Bainbridge  v.  Neilson  > 
No.  10.    Mitchell  v.  Edie 132 

Section    V.  —  Effect    of    Abandonment    in    transferring 
Rights. 
No.  11.    Case  v.  Davidson  \ 

Davidson  v.  Case  (in  error)  \        

ABATEMENT 156-193 

Section  I.  —  As  to  Joinder  of  Plaintiffs. 

No.    1.    Dockwray  )\  Dickenson 256 

Section  II.  —  As  to  Joinder  of  Defendants. 

No.    2.    Boulston  v.  Sandiford 166 

No.    3.    Kendall  v.  Hamilton 175 

No.    4.    Mitchell  v.  Tarbutt 183 


VI  TABLE   OF   CONTENTS. 

ABATEMENT  (contin  ued). 

PAGE 

Section  III.  —  Various  Causes  of  Abatement. 

No.    5.    Sylvester's  case 1SS 

Section  IV.  —  Requirements  of  a  Good  Plea  in  Abatement. 

No.    6.    Warner  v.  Irby ,                191 

ACCELERATION 194-202 

Lainson  v.  Lainson 194 

ACCIDENT  (inevitable) 203-3(37 

No.    1.    Davis  v.  Saunders 203 

No.    2.    The  Uhla 210 

No.    3.    Forward  v.  Pittard  )  .-,  . 
No.    4.    Nugent  v.  Smith      ) 
No.    5.    Fletcher  v.  Rylands      » 

(Ilylands  v.  Fletcher)  > 235 

No.    6.    Nichols  v.  Marsland    ) 

No.    7.    Nitro-phosphate,  &c.  Co.  v.  London  &  St.  Katherine 

Docks  Co 276 

No.    8.    Vaughan  v.  Taff  Vale  Railway  Co 290 

No.    9.    River  Wear  Commissioners  v.  Adamsou 308 

No.  10.   Jacobs  v.  Credit  Lyonnais 338 

No.  11.    Rothes  (Countess  of)  v.  Kirkcaldy  Waterworks  Co.  351 

ACCORD   AND    SATISFACTION    ........       368-405 

No.     1     Pinnel's  Case     >  o^ 
No.    2.    Foakes  v.  Beer  ) 

No.    3.    Bidder  v.  Bridges 393 

No.    4.    Richards  and  Bartlett's  Case 398 

No.    5.    Adams  v.  Taplin 400 

No.    6.   Case  v.  Barber 403 

ACCOUNT 40G-45S 

Section      I. — Jurisdiction  of  Court  of  Equity. 

No.    1.    Taff  Vale  Railway  Co.  v.  Nixon 406 

No.    2.    Smith  v.  Leveaux 419 

Section   II.  — What  may  be  recovered  on  a  Stated  Account. 

No.    3.    Laycock  v.  Pickles 425 

No.    4.    Cocking  v.  Ward 433 

Section  III.  —  Settled  Accounts,  how  far  conclusive. 

No.     5.    Dunbar  v.  Lem 439 

No.    6.    Brownwell  r.  Brownwell 446 

Section  IV.  —  Accounts  between   Tenants  in  Common. 

No.    7.    Henderson  v.  Eason 449 


TABLE   OF    CONTENTS.  Vll 

PAGE 

ACCRETION 453-497 

(of  Subject  Matter  of  a  Right) 

No.    1.    R.  v.  Lord  Yarborough 458 

(of  Titlk). 


No.    2.    Doe  d.  Christinas  v.  Oliver  ) 

No.    3.    Swan  c.  Western  Bank  of  Scotland  > 


4b0 


ACCUMULATION 498-520 

No.    1.    Thellusson   v.  Woodford)  .(< 

Woodford  v.  Thellussou  ) 

No.    2.    Lord  Southampton  v.  Marquess  of  Hertford  ....  514 

ACTION   (Kight  of; 521  et  seo. 

Section     I.  —  Arises  generally  from  Every  Injury. 

No.    1.    Ashby  r.  White 521 

No.    2     Scott  v.  Lord  Seymour .  533 

No.    3.    Harrop  r.  Hir.st 547 

No.    4.    Wedgwood  c.  Bailey 555 

Section    II.  —  For  Cause  affecting  the  Public. 

No.    5.    Crosby  v.  Leng 559 

No.     6.    Att.-Gen.  r.  Shrewsbury  (Kingsland  Bridge  Co)      •     •  567 

No.    7.    Ricket  v.  Metropolitan  Ry.  Co 573 

No.    8.    Mayor,  &c.  of  Lyme  Regis  v.  Henley      .     .  •  .     .     .     .  601 

Section  III.  —  Where  adeemed  or  abridged  by  Statute. 

No.    9.    Hammersmith  Ry.  Co.  v.  Brand 623 

No.  10.    Bradlaugh  v.  Clarke 667 

No.  11.    St.  Pancras  (Vestry)  v.  Batterbury 682 

Section  IV.  —  Arising  out  of  Contract  with  third  Persons. 

No.  12.    Lloyd's  v.  Harper      .     .     .     .   >  fiRfi 

ins:  Co.  ) 


No.  13.    In  re  Empress  Engineer 
No.  14.    Lumley  v.  Gye  ) 
No.  15.    Bowen  v.  Hall  > 


ro6 


Section    V.  —  Cases  of  Loss  where  there  is  no   Right  of 
Action.     Damnum  absque  Injuria. 

No.  16.    Chasemore  v.  Richards 729 

No.  17.    Sutton  r.  Johnstone  )  _rfi 

Johnstone  v.  Sutton  (in  error)  ) 

No.  18.    Kennedy  v.  Brown 789 

No.  19.    The  Queen  v.  Lords  Commissioners  of  the  Treasury    .     802 


Section  VI. — Where  the  Right  survives.— Actio  personalis  moritur 
cum  Persona.      Will  be  contained  in  Vol.  II. 


TABLE   OF   ENGLISH   CASES. 


VOL.  I. 


Note.  —  The  Ruling  Cases  are  shown  by  distinctive  type. 


PAGE 

Aaron  v.  Alexander 527 

Abbot  of  Peterborough's  Case  .     .     463 

of  Ramsey's  Case  ....     403 

Abbott  v.  Smith     .     .     .    170,  171,  ISO 

Abley  v.  Dale 333 

Acatos  v.  Burns 69 

Acton  v.  Blundell  257,  737,  739,  702,  703 

Adams  r.  Bafeald 713 

Adams  v.  Tapling    .     .     .     400,  371 
Addison  v.  Overend     .     .     .       157,  104 

Agacio  v.  Forbes 100 

Ajudhia  Buksh  v.  Mussamut  Ruk- 

inin  Kuar 200 

Aldred's  Case    .     .     241,  243,  240,  207 

Aldridge  v.  Bell 139 

Allen  v.  Havward 257 

Allen  v.  Sugrue 20,34 

Allgood  v.  Blake 324 

Allison  v.  Bristol  Marine  Insurance 

Co Ill,  348 

Allwood  v.  Henckell 49 

Alton  v.  Midland  Ry.  Co.     .     .     .     187 

Amies  v.  Stevens 218 

Anderson  v.  Martindale   .     .     .     .     101 

• v.  Oppenheimer    .     .     .     271 

v.  Royal  Exchange  Ass. 

Co 52,  57 

—  v.  Wallis      .      33,  52,  56,  128 

Andrews  v.  Royal  Exchange  Ass. 

Co 138 

Anon 192 

453 

Appleby  v.  Myers 348 

Annorie  v.  Delamirie 661 

Arthur  v.  Wynne 347 

Ashby  v.  James 431 

Ashby  v.  White     521,  527,  529,  684, 

721 

Ashley  v.  Harrison 714 

Assievdo  v.  Cambridge     .     .      6,  10,  13 
Atkinson  v.  Newcastle  Waterworks 

Co 529 


PAGE 

Atkinson  v.  Ritchie 345 

Atlantic  Mutual  Ins.  Co.  v.  Huth  69 
Atty.-Gen.  v.  Cockennouth  Local 

Board 509 

17.  College  of  Physicians  794 

v.  Ely,    Haddenham,   & 

Sutton  Ry.  Co.    .     .  794 

v.  Great  Eastern  Ry.  Co.  794 

v.  Great  Northern  Ry.  Co.  794 

c.  Oxford,  Worcester,  & 

Wolverampton  Ry.Co.  570 

r.  Rees 476 

-    v.  Reeve 477 

Atty.-Gen.  r  Shrewsbury  (Kings- 
land)  Bridge  Co 567 

Atty.-Gen.  v.  Tewkesbury  &  Great 

Malvern  Ry.  Co 288 

Atty  v.  Lindo 110 

Austen  v.  Great  Western  Ry.  Co.  187 
Australasian  Steam  Navigation  Co. 

w.  Morse 68 


Backhouse  v.  Bonomi       ....     556 
Bagnall  v.  London  &  N.  W.  Rv.  Co. 

241,  216 

Bailey  v.  Bailey 684 

—  ».  Warden 786 

Baillie  v.  Mondgliani 35 

Bainbridge  v.  Neilson       .     .  112,  17 
Baird  v.  Williamson    .     .  241,  246,  259 
Baker  v.  Moore       ......     570 

Ball,  Exp.,  Shepherd,  In  re  .     .     .'  504 

Ball  v.  Herbert 404 

Ballacorkish,    &c.    Mining   Co.    v. 
Dumbell  &  Harrison    ....     759 

Ballantine  v.  Goldim? 543 

Ballard  v.  Tomlinson  .     .     .       271,  758 
Balston  v.  Bensted      733,  749,  755,  762 

Bamford  v.  Turnley 257 

Bankers'  Case,  The 807 

Barber  ».  Flemiii"' 77 


TABLE    OF    ENGLISH    CASES. 


PAGE 

Barber  v.  Nottingham  &  Grantham 

Ry.  Co 247,  354 

Barclay  v.  Bank  of  New  South  Wales  400 

p.  y  Gana     .   218,  223,  224,  229 

v.  Stirling  ....       146,  152 

Barker  v.  Blakes 138 

■ v.  Hodgson      .     .     .      345,347 

Baron  de  Bode,  In  re,  The   .     .     .     805 

Barrington's  Case 337 

Barwis  v.  Keppel 778 

Basset  v.  Basset 501 

Beale  v.  Beale 501 

Beast  on  p.  Scliank 347 

Beckett    v.    Ramsdale,    Hodgson, 

In- re 170,180 

Beddall  v.  Maitland  .  .  .  559,  565 
Bedreeclmnd  v.  Elpbinstone  .  .  825 
Benett  v.  P.  &  O.  Steam  Boat  Co.  218 
Benson  v.  Chapman     ....      44,  85 

Berkley  v.  Elderkin 684 

Bidder  r.  Bridges 393 

Biffin  v.  York 334 

Biiks  v.  Allison 333 

Biscoe  v.  Great  Eastern  Ry.  Co.    .     288 

Bisse  <;.  Harcourt 190 

Bixby  p.  Umdap 720 

Black  v.  Ballymand  Commissioners  759 
Blackburn  v.  Warwick  .  .  .  '  .  445 
Blad's  Case,  Blad  v.  Bamfield  .  .  543 
Blake  p.  Land  &  House  Property 

Corporation     .      .     .     .     272 

v.  Lanvon 713 

Bliss  p.  Smith" 418 

Blower  v.  Great  Western  Ry.  Co.     219 

Bloxham  v.  Hubbard 158 

Blyth  v.  Birmingham  Waterworks 

Commissioners     .     .     .     302 

v.  Tladgate    ....       172. 1S6 

Bonomi  v.  Backhouse         240,  245,  217, 

257   55b' 
Boson  v.  Sandford      167,  169,  17S,  184 

v.  Midland  Great  Western 

Ry.  of  Ireland  Co 303 

Boulston  v.  Sandiford  166,  1S4,  187 

Bourne  v.  Gatliffe 232 

Bowen  v.  Hall 717 

Boweu  v.  Hill 555 

v.  Sandford 759 

Bower  v.  Hill 550,  553 

Bowler  v.  Spathurst 1S9 

Box  p.  Jubb 267,  270 

Boyfield  v.  Brown 35 

Bradburn  v.  Bot  field 160 

Bradlaugh  t>.  Clarke     ....    667 

Bram  p.  Marfell 759 

Brand  p.  Hammersmith  Ry.  Co.     .     302 

Brashear  p.  Mason 807 

Bray  v.  Haller 193 

Brenan  p.  Crawley 430 

Bretherton  v.  Wood   .     .    173,  174,  187 


PAGE 

Brett  v.  Cumberland 609 

Brewster  v.  Kitchell 310 

Briggs  r.  Oliver 206 

Bright  v.  Legerfon 448 

Bristow  p.  James 186 

Bi'kish  Africa  Co.  v.  Companbria 

de  Mozambique 541 

Broadbent  v.  Imperial  Gas  Co.    COO.  658 

v.  Led  ward     .     .     .     .  158 

p.  Ramsbotham  732,  736,  748 

Broder  v.  Sailard 269 

Brotherstone  v.  Barber    ....  129 

Broughton  v.  James     .     .     .     .     .  519 

Brown  v.  Best 753 

v.  Hawkes 787 

p.Smith 17 

p.  Wootton 181 

Browne  p.  Houghton 519 

Browning  v.  Provincial  Ins.  Co.  of 

Canada. 140 

Brownloe  v.  Mitchell  .....  673 

Brownwell  v.  Brown-well    .     .  446 
Brunswick    (Duke  of)  v.  Hanover 

(King  of) 817 

Bryan  v.  Slate   . 720 

Buccieuch  (Duke  of)  v.  Metropo- 
litan Board  of  Works  ....  663 

Buddie  v..  Wilson 187 

Bullock  v  Dommitt     .     .     .     .     .  347 

Burdet  v.  Hopegood 504 

Burgess  p   Carpenter 720 

■ —  v.  Wheate 673 

Burnett  p.  Kensington     ....  48 
Buron  v.  Penman  ....      536,  819 

Burt  v.  Victoria  Graving  Dock  Co.  295- 
Butler  p.  Hunter    ....       216,  257 

Butterniere  p.  Hayes 435 

Bvrnc  p.  Boodle          206 

—  p.  Schiller 348 

By  well  Castle,  The 214 


Cabell  p.  Vaughan       .     .    160,  171,  178 
Caledonian  Ry.  Co.  p.  Ogilvie    596,  597, 

636,  639 

» p.  Walker's  Trus.  596, 

597 


Calvert  p.  Gordon 696 

Calye's  Case 229 

Cambefoot  p.  Chapman  ....  18a 
Cambridge  p.  Anderton      42,  50,  62,  66, 

84,  85 
Cameron  v.  Charing  Cross  Ry.  Co.    575. 

581,589 

Cammed  v.  Sewell 536 

Campbell  p.  Thompson     ....       69 

Carlewis  p.  Clark 371 

Carlisle  (Cor]>.)  p.  Wilson  .  .  .  417 
Carrick  v.  Errington  .  .  .  196,  199 
Carrington  (Lord)  p.  Payne      .     .     197 


TABLE  OF  ENGLISH  CASES. 


XI 


PAGE 

Carriugfcon  v.  Taylor  .  .  .  .  .  715 
Carstairs  v.  Taylor  .  .  .  263,272 
Case  v.  Barber 403 

v.  Davidson 141 

Cattle  v.  Stockton  Waterworks  720,  727 

Cayzer  v.  ( larron  ( !o 214 

Cazalet  v.  St.  Barbe  .  .  .  128,  152 
Chad  wick  v.  Trower    .     .     .       2-12,  214 

Chaffers  v.  Goldsniid 530 

Chalmers  v.  Dixon 269 

Chamberlain  v.  Napier  ....  310 
v.  West  End  ut'  London, 

&  Crystal  Palace  Ry.  Co.        579,  539 

Champernoon  v.  Hill 169 

Chapman  v.  Pickersgill    ....     526 

■  v.  G.  W.  llv.  Co. .     .     .     232 

Charkick,  The    ..'...  .     818 

Chasemore  v.  Richards    .     729,  257, 

271,  763 
Chauutler  v.  Kobinson  ....  211 
Cliedington's  (Rector  of)  Case  .     .     201 

Cheetham  v.  Ward 172 

Child  I;.  Sand 186 

Chhmery  v.  Blackbiirne    ....     142 

Christianberg,  The 544 

Cliurchman  v.  Tunstal  .  607,  609,  617 
City  of  Glasgow  Ry.  Co.  v.  Hunter   303, 

663 
Clare  &  Hodges  Claim  ....  190 
Clark,  Li.  re,  Clark  v.  Randall  .     .     200 

v.  Hart 448 

Clerk  v.  Gelly 168 

Clothier  i\  Webster 302 

Clough  v.  London  &  N.  W.  Ry.  Co.  82 
Clowes  v.  Staffordshire  Potteries  Co.  367 

Clutterbuck  v.  Coffin 371 

Cobequid  Marine  Insur.  Co.  v.  Bar- 

leaux 68 

Cochrane  v.  Cochrane  ....  519 
Cocking  v.  Ward     .     .     .     433,  800 

Coe  v.  Wise 288,  620 

Coggs  v.  Bernard    .    21S,  222,  223,  226, 

229,  231 

Cole  v.  Wilkes 169 

Cologan  v.  London  Ass.  Co.      50,  65,  82 

Colt  y.  M'Mechen 218 

Constitution,  The 818 

Cooke  v.  Eshelby 160 

Cooper  v.  Barber 739 

<>.  Parker 378 

v.  Wit  ham 561 

Cossman  v.  West 69,  111 

Couch  v.  Steel 528,  6S4 

Couldery  v.  Bartrum 370 

Coultha'rt  v.  Cleinentson  .  .  691,697 
Cowper-Essex  v.  Acton  Local  Board  663 
Cox  v.  Burbidge     ....       250,  252 

v.  Mitchell      .     .     .    189,535,543 

Cracknell  v.  Thetford  (Mayor)  .  .  303 
Craft  v.  Boite    ....'...     323 


PAGE 

Cranmer's  Case 201 

Craven  v.  Brady 199 

Crawley  v.  Crawley 513 

Crcllia  v.  Brook    ' 192 

i'.  Calvert 192 

Crompton  v.  Lea    ....       269.  762 

Crosby  v   Leng 559 

Croucli  v.  London  &  N.  W.  Ry.  Co.  21  i, 

Crowhiirst  v  A iiirrsli.-ini  Bmial  Board  2  >s 
Crunibie  v.  Wallsend  Local  Board       55S 

Crump  r.  Lambert 666 

Cullcn  v  Morris 529 

Cumber  v.  Wane    .     .     .   370,374,394 

Cunningham  v.  Dunn 347 

Curlewis  v,  Clark  ....  394.  397 
Cflrrie  v.  Bombay,  &c.  Insur.  Co.  ii5.  41 
Cutter  v.  Powell 350 

Dacres  v.  Dunkin 190 

Dalby    v.    India   &    London    Life 

Ass.  Co. 81 

Dale  v.  Hall  ....  222,  224,  229 
Danford  v.  McAnulty       .     .     .     .     3/2 

Danieil  v.  Sinclair 444 

Darley  v.  Langworthy  .  .  .  .  197 
Darley  Mam  Colliery  Co.  v.  Mitchell  557 
Davenport  v.  Rvlands      .     .       400,  558 

Davidson  v.  Case 141 

Davies  v.  Bush 483 

v.  Mann 214 

Davis  v.  Garrett 288 

Davis  v.  Saunders  .     .     .      203,  232 

Davy  v.  Mitlbrd 67 

Day  v.  McLea 391 

Dawkins  v.  Paulet ....       785,  788 

v.  Lord  Rokeby     ...     786 

Dawson  v.  Remnant 429 

De  Paiba  v.  Ludlow 7 

Dean  v.  Hornby 18,  89 

Decatur  v.  Paulding 807 

Denn  v.  Dicker 5 

Dennis  v.  Tovell     ....       309,  32S 

Devereux  i\  Barclay 174 

Devonport   (Mayor)   v.   Plymouth 

Tramways  Co 682 

Devonshire  (Earl)  ».  Gibbons  .     .     610 

Dewell  v.  Moxon 174 

Dhegetoff  v.  London  Ass.  Co.  .  .  411 
Dickinson  v.  Grand  Junction  Canal 

Co.  .....     735,  742,  747,  752 

Dickson  v.  Clifton 1^7 

Dietrichsen  v.  Cabburn    ....     724 

Digges  v.  Hammond 466 

Dinwiddie  v.  Bailey  .  .  .  421,  124 
Dixon  v.  Adams 371 

v.  Metropolitan  Boara  of  Works 

295,  304 

v.  Reid 31 


Xll 


TABLE    OF    ENGLISH    CASES. 


Dobree  v.  Napier    .     .     .     .       536,  543 

Dockwray  v.  Dickenson 

156 

Doe  ».  Clarke 

505 

47S 

162 

i v.  Lancashire       .... 

505 

v.  Martvn 

483 

Doe  v.  Oliver             .... 

480 

Dormout  v.  Furness  Rv.  Co.     . 

620 

Doss  v.  Secretary  of  State  for  India 

826 

3/1 

50,  07 

Drage  v.  Hartopp  ....       15 

9,  193 

Droglieda  Corp.  v.  Fairtlough  . 

389 

Duchess  of  Kingston's  Case 

501 

439 

Dunn  v.  Birmingham  Canal  Co. 

304 

Dyson  v.  Rowcroft     .... 

51,  65 

East  Anglian  Ry.  Co.  v.  Eastern 

Counties  Ry.  Co 628 

East  India  Co',  v.  Syed  Ally  .  .  825 
East  &  West  India  Docks,  &c.  Ry. 

v.  Gattke '  .     583 

Eastern  Counties  Ry.  Co.  v.  Marriage  628 

Eaveshaff  v.  Austin 199 

Egan  v.  Kensington  Union  .  .  .  792 
Eggiugton  v.  Lawson  ....  26 
Eglington  v.  Norman .     .     .      309,337 

Ekins  v  East  India  Co 536 

Elliott  v.  Rossell     ....       22-2,  2 30 

Ellis  v.  Earl  Grey 807 

1'.  Maxwell 513 

Embrey  v.  Owen    ....      734,  738 

Emery  v.  Macklow 162 

Empress  Engineering  Co.,  ///  re  699 

Evans   v.  Lewis 178 

v.  Manchester,  &c.  Ry.  Co.    684 

v.  Powis 371 

v.  Stevens 192 

w.Walton 720 

Everth  v.  Smith 110 

Ewen  v.  Jones 085 

Eyre  v.  Marsden 513 


20,  32,  84. 

.       816, 


Pabrigas  v.  Mostyn 

Fall  v.  Chambers    . 
Farnworth  v.  Hyde 
Feather  v.  Reg. 
Fife  (Earl  of)  v.  Duff 
Filliter  v.  Phippard 
Fineux  v.  Hovenden 
Fish  v.  Chapman    . 
Filch  v.  Sutton  . 

v.  Weber  .     . 

Fitzgerald  v.  Pole  . 

Flavel,  In  re,  Murray  v.  Flavell 

Fleming  v.  Manchester  (Mayor  of) 


371, 

V. 


768 
411 
100 
817 
194 
245 
549 
224 
381 
195 
128 
704 
305 


PAGE 

Fleming  v.  Smith  .  .  37,  85,  91,  99 
Fletcher  v.  Rylands  235,  272,  273,  345 
Foakes  v  Beer  .  .  .  340,  390,  394 
Foley  v.  Hill 421,  423 

v.  United  Marine  Insur.  Co.       77 

Ford  v.  Colesworth 347 

v.  Metropolitan  &  District  Ry. 

Cos 597 

Fordyce  v.  Bridges 335 

Fores  v.  Wilson 715 

Forester  v.  Secretary  of  State  for 

India 826 

Forward  r.  Fittard        216,  215,  218, 

221,  225,  234 

Foster  c.  Great  Western  Rv.  Co.  .     669 

Foulkes  v.  Met.  Dist.  Ry.  Co.  .     .     187 

Foxtwisl  v.  Tremaine 189 

Freeman  v.  Last  India  Co.  ...  69 
Freemantle  v.  L.  &  N.  W.  Ry.  Co.  302 
Fritz  v.  Holisoa  ...."'  558,  619 
Fuller  v.  Fuller 196,201 

Gage  v.  Newmarket  Ry.  Co.     .     .  628 

(iami\  v  Gaudy 704 

Gardner  v.  Salvador 52 

Garnet t  v   Bradley 669 

Garrett  v.  Hundley 159 

v.  159 

v.  Hooper 193 

Garside  v.  Trent,  &c.  Navigation  .  232 

Geang  v.  Swaine 371 

Geddes  v.    Bann   Reservoir  (Pro- 
prietors)      304 

Gt'iinaine  v.  Frederic 186 

Geruon  v.  Royal  Exchange  Ass.  Co.     139 

Gervais  de  Clifton 816 

Gibraltar    Sanitary   Commissioners 

v.  Orfila 620 

Gibson  v.  East  India  Co.      .     .     .     823 

v.  Preston 621 

Gidley  v.  Lord  Palmerston  .     .     .     807 

Gildart  v.  Gladstone 367 

Gladstone  v.  Ottoman  Bank      .     .     819 

Glassford  v.  Scott 491 

Glennie  v.  London  Ass.  Co.  .  51,  57 
Glover  v.  North  Staffordshire  Ry.  Co.  578 
Goddardu.  O'Brien  .  .  371,  390,394 
Godsal  v.  Boldero  ...  81,  125,  129 
Goff  v.  Clinkard      ....       222,  229 

Goldsmid  v.  Gillies 44 

Good  v.  Cheeseman 392 

Goodright  v.  Opie 201 

Goring  v.  Goring 371 

Goss\\  Withers  ...  1,  58,  122 
Govett  v.  Radnidge  .  .  170,173,187 
Grand  Junction  Canal  v.  Sliugar  .  459 
Grant  v.  Secretary  of  State  for  India  827 
Grant  &  Co.  v.  Coverdale,  Todd,  & 

Co 346 


TABLE    OF    ENGLISH    (ASKS. 


xm 


PAGE 

Gratitudine,  The 69 

Gravenor  v.  Stevens    .     .     .      170,  190 

Graves  v.  Legg 323 

Great  Western  Ry.  Co.  v.  Blower      230 

Green  v.  Button 709 

v.  Royal  Exchange  Ass.  Co. 

6-2,  110 

v.  Tribe,  Love,  In  re      .     .     200 

Greer  v.  Poole 340 

Gregory  *>•  Piper 215 

— •    v.  Williams    .     .     .       693,  701 

Griffith  v.  Young 435 

Griffiths  v.  Vere      .     .     .   511,  513,  518 
Grill  v.  General  Iron  Screw  Collierv 

Co "219 

Gulliver  v.  Wickett 505 


Halley,  The 340,  542 

Hamilton  v.  Mendez         112,  58,  89, 

122,  131 
H'uninack  v.  White  .  .  204,  245,  255 
Hammersmith  Ry.  Co.  v.  Brand 

623,  596,  597 
Hammond  v.  Schofield  ....  181 
Hand,  In  re  .... 
Hardcastle  v.  Howard 
Harmau  v.  Tappeudeu 
Harris  v.  Baker      .     . 

v.  Carter      .     . 

v.  Watson    .     . 


Harrison  v.  Harrison  . 
Harriss  v.  F.iwcett 
Harrop  v.  Hirst  .  . 
Hartley  v.  Cummings 
Ha.sk  ins  v.  Roysler 
Hawes  v.  Birch  .  . 
Hawkins  v.  Gathercole 
Haylou  v.  Brown  .  . 
Heathcote  v.  Crookshank 
Helps  v.  Hereford  .  . 
Hemming  v.  Pu<jh 
Henderson  v.  Eason 
Henry  v.  Golduev  . 
Hereford  &  South  Wales 
&  Engineering  Co.,  In  l 
Herbert  v.  Paget  .  . 
Heme  v.  Hay  . 
Heydon's  Case  .  . 
Hibbs  v.  Ross  .  .  . 
Hickie  v.  Rodonache  . 
Higginsv.  Butcher 
His^gs  v.  Maynard  .  . 
Highmore  v.  Primrose 
Hill  v.  Managers,  &c. 

v.  Metropolitan  Asvl 

Hills  v.  Croll     .     .     , 
Hobart  v.  Butler    . 
Hobsou  t>.  Todd 
Hodsfkinson v.  Ennor  241 


449 


324. 


Board 


805 
381 
531 
608 
371 
371 
510 
691 
547 
713 
720 
372 
675 
561 
371 
483 
423 
456 
189 

702 
609 
26 
675 
327 
154 
561 
207 
436 
666 
30'i 
724 
70' 


TAGE 

Hodgson,  In  re,  Beckett  v.  Rams- 
dale      170,  180 

v.  Ambrose 20 J 

v.  Blackiston 49 

Hoffman  v.  Marshall 40 

Hoggins  v.  Gordon 702 

I  Loldsworth  v.  \\  ise L8 

Ilolgate  v.  Shutt 444 

Holmes  v    .Mather 205 

Hopkinson  v.  Lee 161 

Huber  v.  Steiner    ......  543 

Hudson  v.  Harrison 139 

v.  Tabor 288 

Hull  &  Selby  Ry.  Co.,  In  re     .     .  476 

Humberston  v.  Humberston      .     .  501 

Humphries  v.  Cousins      ....  270 

Hunt  v.  Downian 526 

v.  Royal  Exchange  Ass.  Co. 

33,  51,  56,  139 

Hunter  v.  Young 163 

Hiudman  v.  North  E.  Ry.  Co.       .  270 

Hurst  v.  Us  borne 80 

Hutchinson  v.  Gillespie    ....  684 

Hutton  v.  Harper 334 

Hyde  v.  Trent,  &c  Navigation      .  232 

Hyman  v.  Helen 544 

Ibberson  v.  Neck 401 

Idle  y.  Royal  Exch.  Ass.  Co.   62,66,  111 
India   (Secretary  of  State   for)   v. 
Shamachree  Boye  Subaba  (Tan- 

jore  Case) 825 

Irving  v.  Manning  ....     20,  34 

Iveson  v.  Moore     .     .     .576,  595,  619 


Jacaud  v.  French    .... 
Jackson  v.  Union  Marine  Insur 
v.  Pesked.     .     .     . 


Jacobs  v.  Credit  Lyonnais 
J  agger  v.  Jagger    .... 

Janson  v.  Ralh 

Jersey  Case 

Johnstone  v.  Sutton    .     . 
Joll  v.  Lord  Curzon    . 
Jones  v.  Festiniog  Ry.  Co. 


Co, 


v.  Gwynn      .     .     . 

v.  St.  John's  College 

v.  Smith   .... 

Jull  v.  Jacobs    .... 


263, 
282 


160 

111 

616 

338 

513 

67 
793 
765 

173 
268, 
627 
769 
346 
159 
200 


243 


Kaltenback  v.  Mackenzie      .     .41,  130 
Kearney  v.  L.  B.  &  S.  C  Ry.  Co.      206 

!>  ■  ■    'ii  v.  Pearson 346 

••    Rickeringill     ....     715 
Case      .     283,  286,  607,  610 


XIV 


TABLE    OF   ENGLISH    CASES. 


PAGE 

Keightley  v.  Watson 16] 

Keith's  Case 494 

Kelly  v.  Walton 138 

Kciii|)  v.  Halliday 35,  81 

Kendall  v.  Abbott 201 

Kendall  v.  Hamilton  .  .  175,  170 
Kendall    v.   London  &  S.  "VV.   Rv. 

Go 219,  230 

Kennedy  p.  Broun  .  .  789,  438 
Kensit  v.  Great  Eastern  Ry.  Co.  .  760 
King  v.  Denfsou 201 

v.  Hoare  ....    177,  179,  183 

v.  Westwood 609 

Kirk  v.  Keg.      .     .     .    '.     .     .     .     815 

v.  Gibbs 347 

Knight  v.  Faith  .  S3,  91,  93,  9S,  100 
Knowles  v.  Haughton      ....     438 

v.  Michel 436 

Lade  v.  Holford 517 

Lainson  v.  Lainson  ....  194 
Lamb  v.  Vise 6S9,  693 

p.  Walker 556 

Lambe  v.  Sinvthe 193 

Lambert  r.  Bessy  .  .  .  240,  24(5,  260 
Lampleigh  v.  Brathwaite      .     .     .     799 

Lane  v.  Cotton 218,817 

v.  609 

Laugridge  v.  Levy  .  .  528,  709,  727 
Langston  v.  Wetherell    .     .     .     .     162 

Lantsbcry  v.  Collier 517 

Latless  v.  Holmes 330 

Lavaroni  v.  Urnry  ....  218,  223 
Law  v.  Foothill  and  Rawlins  .  =  190 
Lawrence  v.  G.  N.  By.  Co.  .       282,  302 

Lawrie  v.  Douglas 219 

Laycock  v.  Pickles      ....    425 

Leake  v.  Robinson 518 

Leatham  v.  Terry  .......     142 

Leduc  v.  Ward  * 181 

Lee  v.  Bayes 564 

Levick  v.  Shafto 159 

Levit  v.  Staineforth 160 

Levy  v.  Laugridge      .     .     .     •     •     709 

v.  Merchants  Insur.  Union  Co.     69 

Lewis  v.  Bucker 25 

Liggins  v.  Inge 754 

Linwood  v.  Squire       ...  .     159 

Liver  Alkali  Co.  v.  Johnson  218,  224,  229 

Llovd  v.  Arehbowle 159 

. — -  v,  Guibert  .  219,  222,  342,  345 
Lloyds  p.  Harper     .     .     .      686,  701 

Loddington  v.  Kime 501 

London  Association  of  Shipowners, 

&c.  v.  London,  &c.  Docks,  Joint 
Committee 571,  598 

London  B.  &  S.  C.  Ry.  Co.  v. 
Truman 305 

London  &  N.  W.  Ry.  Co.  p.  Bradley  635 


London  &  Tilbury  Ry.  Co.  v.  Trustees 
of  Gower's  Walk  Schools  .     .     .     663 

Long  v.  Blaekall 505 

Longden  v.  Simson     .     .     .       511,  513 
Lonsdale  (Karl  of)  v.  Nelson 
Love,  In  re,  Green  v.  Tribe  . 

v.  Wyndhain  .     . 

Lovelace  v.  Cocket 
Lubbock  *•  Inglis  . 
Lumley  v.  G-ye       706 


Lundey  c.  ^\  agner 
Lyme  Regis  (Mayor)  o. 

Lynch  v.  Kuiglit     .     . 
Lynn  (Mayor)  v.  Turner 
Lvon  r.  Fishmongers  Co 
—   v.  Mel  Is  .      . 


Zemin 


M.  Moxham  (The)      . 
M' Andrews  v.  Vaughan 
Macbeatli  v.  Haldimand 

McCarthy  v.  Abel     .   122 
McCombie  r.  Davies   . 
McCoy  v.  Danbey  .     . 
McDonald  v.  Bryce     . 
MeGowan  v.  Middleton 
McHenry  v.  Lewis 
Mclver  v.  Henderson 
McMahon  v.  Burchell 
McMauus  v.  Bark  .     . 
McMasters  v.  Slioolbred 
Madias    Ry.   Co. 

Carvatenagarum 
Madrazo  v.  Willes  .  . 
Magdalen  College  Case 
Mangone  v.  Douglas  . 
Manning  o.  Newnham 
Marpesia  (The)  .  . 
Marsack  v  Webber  . 
Marsh  v.  Keating  .  . 
Marshall  v.  Holloway  . 

v.  Parkes 

v.  York,  &c 

Martin  v.  Crockett, 
Marzetti  v.  Williams 
Mason  p.  Hill    .     . 
Sainsbury 


H.v 


Mawman  v.  Gillet 
Max  p  Roberts  .  . 
May,  Li  re  .... 
v.  Burdett     .     . 

p.  Taylor  . 

Maybury  p.  Mudie 
Medeiror  p.  Hill  .  . 
Melhada  v.  Porto  Alegre 
Mellish  v.  Andrews  . 
Mellor  v.  Spateman  . 
Mentone  v.  Athawas  . 
Merle  (The)       .     .     . 


,     618 

,     200 

...     501 

•     .     .     372 

...     174 

719,  722,  724, 

727.  728 

.      70?.  7  24 

Henley  601, 

621 

.     .     .     722 

607,  609,  617 

.     760 

,     224 


,  142 


Co. 


Ry.  C 


151, 


543 
52 
816 
153 
.  174 
.  263 
.  513 
.     559 

189,  543 
.  18 
.  452 
.  371 
.  128 
of 

263,  271 
.     817 

669,  672 
.  205 
32,  51 
.  207 
.  792 
.  564 
.  518 
.  65 
.  187 
.  43 
.  552 

733,  753 
.  81 
.  1 59 
.  173 
.  791 

251,  262 
.  158 
.  193 
.  340 

o.  .  701 

,  65,  138 
.  549 
.  347 
.  310 


TABLE    OF    ENGLISH    CASES. 


XV 


PAGE 

Mersey  Dock  Trus.  v.  Gibbs  .  .  620 
Metrop.  Bd.  of  Works  v.  McCarthy  596, 

597 
Midland  Iusur.  Co-,  v.  Smith     .     .     565 

Miller  ».  Woodlall 153 

.Miner  v.  Gilmoiir 734 

Mingay  v.  Hammond 792 

Mitchell  v.  Darley  Main  Colliery  Co.  557 
Mitchell  v.  Edie  .  132,  49,  63,  83 
Mitchell  v.  Sultan  of  Johore  817,  818 
Mitchell  v.  Tarbutt      .  183,187 

Mogul  Steamship  Co.  v.  McGregor  727 
Monev  v.  Leach      .     .     .     .     .     .     817 

More*.  Hill 800 

Morris  v.  Hunt . 791 

Morrison  v.  Parsons 142 

Morse  v.  Slue         167,  218,  222,  223,  221. 

229 

Moss  v.  Smith 31,  34,  79 

Mosfyn  v.  Fabrigas  .  .  536,  540,  541 
Mount  v.  Harrison  ....  66,  111 
Mountsteplien  ??.  Brooke  .  .  .  178 
Mullett  v.  Shedden  .  .  .  50,  62,  65 
Munden  v.  Brunswick  (Duke  of)  .     818 

Munni  v.  Brotlie 489 

Muuster  v.  Lamb 787 

Murray  v.  Flavel,  Flavel,  ///  re.  .  701 
Mussumat  Isnam  Bandi  v.  Hurgovind 

Ghose 478 

Mutrie  v.  Binney  ....  189,  514 
Myers  v.  Defries 669 

Nabob  of  the  Carnatic  v.  East  India 

Co 824 

Napier,  In  re 806 

Naylor  v.  Taylor 17,  129 

Nebraska  City  v.  Campbell  .  .  .  621 
Nelthorpe  v.  Dorringtoii  ....  157 
New  River  Co.  v.  Johnson  .     .     .     354 

Newman  v.  Walters 371 

Newton  v.  Harland 565 

— v.  Stewart 193 

Nichols  v.  Marsland  262, 282, 284, 2SS 
Nitro  Phosphate.  &c.  Co.  v.  Lon- 
don &  St.  Katerine  Docks  Co.  276 
Norfolk's  Case  (Duke  of)  .  .  .  501 
Norman  v.  Thompson  ....  881 
North  Shore  By.  Co,  v.  Pion     661,  760 

Northey  v.  Strange 504 

Notara  v.  Henderson        .     .     .     .     219 

Nowlan  i\  Geddes 171 

Nugent  v.  Smith     216,  233,  264,  310 

Oakley  v.  Portsmouth  &  Byde  Steam 

Packet  Co. 218 

O'Connor  v.  Spaight 412 

Odell  v.  Cormack 181 

Ogilvy  v.  Caledonian  Ry.  Co.  576,  588, 

596 


O'Neill  v.  Lucas 

Onlie's  Case 

Original  Hartlepool  Co.  v.  Gibb 


PAGE 

513 

399 
619 


Padwick  v.  Hurst 421 

v.  Stanley     .     .     .      421,124 

Paine  v.  Partridge'  606,  607,  609,  617 
Palmer  v.  Hutchinson      .     .     .     .     616 

v.  Lawson 404 

v.  Mallett 101 

Paradiue  v.  Jane        288,  310,  329.  345, 

Parkes  v.  G.  W.  Ry.  Co.  ...  366 
Pa  dement  Beige,  The  .  .  .  .  818 
Parmeter  ».  Todhunter    ...     44.  69 

Pairv  v.  Aberdein 18,  50 

Parsons  v.  Scott 33,  44 

Pasley  v.  FrReman 527 

Pastorius  r.  Fisher 754 

Patterson  v.  Bicliie     .     .     .     .    18,  128 

Peachy  v.  Rowland 257 

Peacock  v.  Harris 436 

Peninsular  &  O.  S.  N.  Co.  v.  Shand  342 
Penny  &  South  Eastern  Ry.  Co.,  Re 

576,  639 

Peter  v.  Kendal 609 

Petrie  v.  Bury 159 

Peruvian  Guano  Co.  v.  Bockwoldt  544 
Peyto's  Case      .......     401 

Phelps  v.  Lvlc 159 

Phillips  v.  Claggett 158 

v.  Evre 542 

— v.  Phillips  .     .     .   418,  421,  424 

Pliipps  v.  Kelynge 515 

Pianciani  v.  London  &  S.  W.  Ry.  Co. 

218 

Pickard  v.  Smith 246 

Pickering  v.  Barclay 218 

i\  James 530 

Pilkiugton  v.  Scott 713 

Pilley  v.  Robinson 1S2 

Pineliou  v.  Chilcott  .  .  .  436,  800 
Pindar  w,  Wadswortli  ....  552 
Pinnel'a  Case  368,  370,  374,  390, 

391,  393 

Pixley  v.  Clark 257 

Planlamour  v.  Staples  ....  134 
Pole  v.  Fitzgerald  ...     14,  117,  128 

Pollen  v.  Bridges 565 

Pond  i\  King 7 

Popham  v.  Breainore 607 

Porter  v.  Lopes 454 

Potter  v.  Brown 543 

v.  Campbell      ....      76,86 

Potter  v.  Rankin 70 

Powell  v.  Fall 268 

—v.  Lay  ton    ....       166,  187 

Pozzie  v.  Shipton 187 

Price  t'.  Ley  burn 435 


XVI 


TABLE    OF    ENGLISH    CASES. 


PAGE 

Provincial  Iusur.  Co.  of  Canada  v. 

Leduc 19,  140 

Pryce  v.  Belcher 530 

Pulbrook  v  Lawes 4-3/ 

Pullers.  Halliday 152 

v.  Staiuforth     .     .     .     .    19,  151 


Quare  Lane  v.  Cotton      ....     812 

Quarman  v.  Burnett 327 

Queen  Dowager's  Case,  The      .     .     80S 


Race  v  Ward 733 

Rajah  of  Coorg  v.  East  India  Co.  823,  826 
Rajah  Salig  Ram  v.  Sec.  of  State 

for  India 826 

Ralli  V.  Janson 67 

Randall  v.  Cockran     ....      81,  93 

Rankin  v   Potter 70 

Ratcliffe  v.  Evans 529 

Rawlins'  Case 484,  497 

Rawson  v.  Johnson 347 

Rawston  v.  Taylor       .     .     .       736,  748 
Read  and  Headman's  Case   .     .  556 

Read  v.  Bonham    .     .     .     .  _  •    50,  139 

■ v   Victoria  Station  &  Pimlico 

Rv.  Co 354 

Readhead  v.  Midland  Ry.  Co.     208,  232 
Re"-,  v.  Bradford  Canal  Navigation 

Co 306 

ij.  Eastern  Counties  Ry.  Co.  .     578 

v.  Commissioners    of  Sewers 

.  »r  Essex 271 

Reg.  v  Commissioners  of  Treasury 

802 
Reg.  f  Commissioners  of  Treasury     805 

— —  v of  Woods  and 

Forests 807 

v  Duchess  of  Buccleugh  .     .     607 

v.  Leigh 310 

v.  Lesley 536,  543 

c  Skinner 787 

«.  Williams 620 

v.  York  &  North  Midland  Ry. 

Co '  •     288 

R,ex  v.  Clark      .....      668,  673 

v.  Commissioners  of  Sewers  for 

West  Somerset  .     .       282  310 

v.  Commissioners  of  Treasury     805, 

S10 

v.  Cross 619 

v.  Hymen       ....       668,  673 

v.  Inhabitants  of  Kent      .     .     606 

v. of  Lindsay      .     606 

v.  Jones 619 

».  Kerrison    ....      606,610 

t7.  London  Docks  Co.  .      577,  5^8 

v.  Malland      ....       668,672 

— —  v.  Mayor  of  Spool  ....     60 


Rex  v.  Oldsworth 474 

v.  Pease    .     .     299,  627,  635,  639 

v.  Russell 619 

17.  Stoughton 606 

Rex  17.  Yarborough  (Lord)  .  .  458 
Rex  v.  Young  &  Clennie  .  .  .  172 
Reynolds  v.  Kennedy       .     .       771,  777 

v.  Pinhowe 37<> 

Rice  v.  Shute  .   170,  173,  174,  179,  1J-6 

Rich  17.  Kneeland 223 

Richards  &  Bartlett's  Case  398,  371 

Richards  v.  Butcher 163 

v.  Heather 171 


Roper  v.  Holland 
Rosetto  v.  Gurney 
Ross  v.  Fedden 

v.  Johnston    , 


Ricket  v.  Metropolitan  Ry.  Co. 

573,  553,  636 

Ricketts,  Lire 806 

Riley  v.  Home 222 

River  "Wear  Commissioners  v. 

Adamson 308,  2S8 

Roach  v.  Havncs '  197 

Robertson  v   Clarke    .     .     .     .      50,  62 

v.  Fleming      ....     704 

v.  Hartopp     ....     553 

v.  Macdonough    .     .     .     801 

Robinson  v.  Bland 342 

v.  Hardcastle    .     .     .     .     502 

Rodonaclu  v.  Elliot     ....    19,  1   0 

Roe  v.  Quartley 505 

Rogers  v.  Head 

,  HlO 
30  34 
.  ^72 
.     174 

Rosslyn's  Trust 513 

Rothes  (Countess)  v.  Kircaldy 

Waterworks  Commissioners  351 
Rouquette  v.  Overmann  .     .  340 

Roux  y.  Salvador    46,  42,  83,  90.  91. 

93,  99 

Rowe  v.  Pickford 232 

Ruddiman  v.  Smith 272 

Rughoobur  Dval  Sahoo  v.  Kishen 

Pertab  Sahe'e 479 

Russell  v.  Men  of  Devon     .       60S,  609 

Rustomjee  v.  Meg 816 

Rylands  v.  Fletcher      235,  262,  2<'>4, 
275,  2S2,  288,  309 

St   Pancras  Vestry  v.  Batterbury 

682 

Sampson  v.  Hoddinott     ....     555 

Santos  v.  Illidge 536 

Saville  17.  Roberts 769 

Scales  v.  Pickering 366 

Scatter  wood  v.  Edge 501 

Schieffelin  v.  Harvey 230 

Schinotti  t?,  Bumsted 530 

Scott  v.  Godwin      .     158,  160,  164,  165 


v.  London  Dock  Co. 
-tt  r.  Lord  Seymour 


244. 
533 


255 
206 


TABLE    OF    ENGLISH    CASKS. 


XV]  1 


PAGE 

Scottish  Marine  Co.  of  Glasgow  v. 

Turner 153,154 

Scratton  v.  Brown 476 

Seago  v.  Deane  ....  436,  S00 
Sedgworth  v.  Overend     .     .     .  157 

Senior  v.  Metrop.  Ry.  Co.    .      579,  589 

Sharpe  v.  ( Hadstoues 142 

Shawe  v.  Eelton 64 

Sheehan  v  G.  E.  Ry.  Co.  .  .  .  163 
Sheffi  sld  v.  Lord  Orrery  ....  502 
Shelley's  Case    .......     201 

Sheperd  v.  Wakeman 709 

Shepherd,  l,i  re,  E.rp.  Ball    .     .     .     56 1. 

Sheppard  v.  Baillie 171 

v.  Hills 684 

Sliurv  f-  Pigott 753 

Sibree  v.  Tripp  ....   371,  390,  394 

Sidney  v.  Shelley 196 

Sinebriek  v.  Salmond 347 

Sims  v.  Bond 159 

Simmons  v.  Pitt, 513 

Simpkin  v.  L.  &  N.  W.  Ry.  Co.    .     30  t 

Simp&on  v.  Thomson 154 

Sirdar  Bhagwau  Liugh  v.  Sec.  of 

State  for  India 8-26 

Sjoerds  v.  Luscombe 345 

SkiniKT  v.  Gunton 716 

v.  Stocks 159 

Slings  bv's  Case 161 

Smith,  In  re 806 

>-  v.  Cunningham    ....     519 

(-.Fletcher      .     .     .       269,2^8 

v.  Kenrick     241,  246,  258,  269, 

754,  762 
Smith  v.  Leveaux  .  .  .  419,  423 
Smith  v.  Loud  hi  &  S.  W.  Ry.  Co. 

214,303 

v.  Midland  Ry.  Co.  .     .         303 

w.Robertson   .     .     .     .    17,129 

v.  Shepherd 218 

u.Smith 159 

v.  Weguelin 81S 

Snow  v.  Whitehead 271 

Somes  v.  Sugrue 67 

Sorsbie  v.  Park 161 

South  Eastern  Ry.  Co.  v.  Martin  418,  421 

Southcoat  v.  Stanley 621 

Southampton  (Lord)  v.  Hertford 

(Marquis) 514,  518 

Spence  v.  Chadwick 345 

Spencer  v.  Franco 14,  117 

Spiller  v.  Paris  Skating  Rink  Co.       701 

Splidt  v.  Bowles 142 

Spratt  v.  Caledonian  Ry.  Co.    .     .     66 1 

Spring's  Case 556 

Sree  Eckowrie  Sing  v.  Heeraloll  Seal  479 
Steininan  v.  Magnus  ....  397 
Stephenson,  In  re,  Stephenson  v. 

Stephenson 199 

Stephenson  v.  Hart 174 


PAOF 

Stewart  i\  Greenock  Marine  Insur. 

Co 92,  9S,  152,  154 

Stilk  v.  My  rick       371 

StocKport  Ry.  Co.,  In  re      ...     663 

Stone  v.  Marsh 563 

Stowell  t\  Zouch 46 1 

Sti-atfield  v.  lialliday 172 

Stringer  v.  English,  &c.  Insur.  Co.      OS, 

79,  83 
Strousberg  v.  Republic  of  Costa  Rica 

MS 

Stubbs  v.  Railway  Co 349 

Sturgeon  v.  Wiugfield      ....     496 

Sussex  Peerage  Case 235 

Sutton  v.  Clarke     .     186,  241,  216,  255 
Sutton  v.  Johnstone    ....    765 
Swan  v.  Western  Bank  of  Scot- 
land     487.  496 

Swiiilen  v.  Lord  Chelmsford       793,  SO] 

v.  Swiufeu ?89 

Sykes  v.  Dixon 713 

Sylvester's  Case 188 

Symonds  v.  Darknoll 168 

Taff  Vale  Ry.  Co   v.  Nixon  .     .    406 

Talbot  v.  Jevers 513 

Tanjore  Case,  Secretary  of  State  for 

India  c.  Kamachee  Boye  Sahaba  825 

Tarleton  v.  McGawley      ....  714 

Taylor  v.  Neri 714 

Teed  v.  El  worthy 159 

Tenant  v.  Goldwin     245,  247,  250,  252, 

255,  270 

Tench  v.  Cheese 513 

Tennent  v.  Glasgow  (Earl)  .     .     .  263 

Tewart  v.  Lawson 518 

Thelluson  v.  Sliedden       .     .     .     .  126 
Thellusson  v.  Woodford      .     .498 

Thomas  v.  Birmingham  Canal  Co.  303 

V.  Heatho'rn 371 

v.  Reg 815 

v.  Sorrell 526 

Thompson  v.  Rowcrof't    ....  142 
v.  Roval  Exchange  Ass. 

Co.       .     . 51,57 

Thornelv  v.  Hebson 129 

Thornhill  v.  Evans 791 

Thorpe  v.  Thorpe 387 

Tickell  v.  Short 430 

Tipping  v.  St.  Helen's  Smelting  Co.  257 

Tobuitf.  Reg "816,  817 

Tomlinson  v.  Gill  ....      6S9,  694 

Topham  v.  Morecraft 800 

Touehe  v.  Metropolitan  Ry.  Ware- 
housing Co 701 

Townsend's  Estate,  In  re,  Townsend 

v.  Townsend 200 

Tozer  v.  Child 530 

Tregonwell  v.  Sydenham      .       195,  199 


XV1U 


TABLE    OF    ENGLISH    GASES. 


gauuii  v.u.  v 

21 S 

485 

69 

200 

C.  Rv.  Co. 

305 

666 

214 

43 

245 

526 

7'.)  1 

• 

163 

818 

734 

Trent  &  Mersey  Navigation  Co.  v. 

Wood  .     .     . 
Treviban  v.  Lawrence 
Trouson  v.  Dent 
Truell  v.  Tyson 
Truman  v.  L.  B.  &  S. 

v.  Ry.  Co. 

Tulf  v.  Warmnn 
Tiiuim  v.  Edwards 
Turbervil  v.  Sliamp 
Turner  v.  Harting 

v.  Phillips   . 

Turquand  v.  Fearon 
Twvcross  v.  Dreyfus 
Tyler  v.  Wilkinson 


Uhla,  The 210 

Underwood  v.  Robertson     .     .     .       65 
Uzielbi  v.  Boston  Marine  Insur.  Co.    69 


Yallance  v.  Falls 681 

Van  Gelder  v.  Sowerbridge,  &c.  Soc.  163 

Van  Omeron  v.  Dowick  ....       69 

Vaughan  v.  Tafif  Vale  Ry.  Co.     296, 

263,  282,  627,  635,  639,  662 

Vavasseur  v.  Krupp 8 IS 

Vernon  r.  Jeffreys 165 

Vicars  v.  Wilcocks 721 

Vicary  v:  Warne 792 

Vick  v.  Edwards 4S3 

Virgil,  The 213 

Virgo,  The 207 


Wadsworlh  v.  Queen  of  Spain 
Walker  i>.  Baird      . 
Wall  v.  McNainara 
Wallis  v.  Hodgson 
Walter  v.  Cronin    . 
Walton  v.  Waterhou.se 
Warden  v.  Bailey  . 
Ware  v.  Polhill  '    . 
Warner  p.  Irby   . 
Warren  v.  Matthews 
Waterfall,  Exp.      . 
Watts  v.  Brooks    . 
Weale  v.  Lower 
Weatherall  v.  Thornburgl 
Webb,  In  re      .... 


.  817 
817,  819 

.  768 

.  504 

.  720 

.  347 

.  785 

.  517 

.  191 

.  777 

.  179 

.  438 
485,  496 

.  513 

.  232 


Wedgwood  v.  Bailey  .  .  . 
Welfare  v.  L.  B.  &  8.  C.  Ry.  Co. 
Wells  v.  Abraham  ...... 

v.  Watling 

Westbury  v.  Powell 

West  Cumberland  Iron,  &c.  Co.  v. 

Kenvou     

Western  Counties  Ry.  Co.  v.  Wind- 
sor, &c.  Ry.  Co 

Westmoreland  Green  &  Blue  Slate 
Co.  r.  Fielderi 

Wetherell  i\  Langston     .... 

Whalley  v.  Lane.  &  Yorks.  Rv-  Co. 

Whattoff  v.  Frisby      .     .     .  * .     . 

Wheatlev  v.  Golney 

Whelpdale's  Case 

Whiuctrp  Pi  Hughes 

White  v.  Gascovne 

v.  Spettigue 

Whitehead  v.  Hughes  .... 
Whitfield  v.  Iiord  de  Despencer     . 

Wilkinson  v.  Byers 

Wiiks  v.  Hungerford  Market  Co. 

William  Lindsay,  The  .... 
Williams  v.  Groncott 

r.  Morlaud 

Willoughbv  p.  Backhouse     .     .     . 

Wilson  v.  Foster 

V.  Newberry     ..... 

—  v.  Royal  Exchange  Ass.  Co. 
v.  Watldelt       ...       269. 


Windsor,  &c.  Ry.  Co.  v.  Reg.  and 
Western  Counties  Ry.  Co.       8  5 
Wiusmoie  r.  Greeubank  .     .       526 
Winterbottom  v.  Lord  Derby 
Withers  v.  North  Keut  Ry.'Co 
AVolmcrshaussen,  Re  . 
Wood  p.  AVand       .... 
Woodford  r.  Thellusson 
Workman  v.   Great  Northern  Rv 

Co 2S3 

Wright  v.  Howard   .  .  .   734 


555 

207 
564 
552 
549 

269 

337 

685 
159 
270 
434 
193 
171 
319 
193 
564 
162 
817 
370 

576, 
587 
207 
241 
754 
399 
129 
268 
33 

,762 

,  817 
,  708 
596 
28S 
172 
734 
498 

,"288 
,  753 


Yalding  r.  Tay 169 

Yates  v.  Why'te 154 

Youle  v.  Harbottle 174 

Young  v.  Rudd 379 

v.  Turing    .     .     >.     .     .     26,  34 


TABLE   OF   AMERICAN   CASES. 


VOL.    I. 


Abbott  v.  Broome  .     . 

o.  Mills      .     . 

Adams  i".  Barrett  . 
v.  Krothinghara 

v.  Gillespie 

o.  Nichols  .     . 


Addisou  i».  Overend     .     . 
Adsit  v.  Brady  .... 
Ahlliauser  v.  Butler     . 
Albrittiu  v.  Mayor 
Aldrich  v.  Tripp 
Alexander  v.  Baltimore  Ins. 
v.  Dorsey     .     . 


Co 


Allaire  v.  Whitney 
Allen  v.  Thomas     .     .     . 
Almy  v.  Daniels     .     .     . 
American  Ex.  Co.  v.  Smith 
Am.  Ins.  Co.  v.  Francia  . 
Ames  v.  Gilman      .     .     . 

v    Union  R.  Co. 

Amory  v.  Lord       .     .     . 
Amoskeag  M.  Co.  v.  Goodale 
Anderson  v.  Baker 

o.  Doty  . 

■  v.  May    . 

■  v.  Milhkin 


Andiug  v.  Levy 

And  over,  &c.  Turnpike  v.  Gould 

Anne  Arundel  Co.  v.  Duckett 

Anueiy  a.  De  Saussure 

Appleby  v.  Brown 

Applin  v.  Van  Tassel 

Arnold  v.  Lyman     . 

Atlantic  Dock  Co.  v. 

Atty-Gen.  v-.  Cohoes  Co. 

v.  Eau  Claire 

v.  N.  J.  R,  &T.  Co 

v.  Williams 


Mayor 


At  wood  v.  Fisk 
Ayres,  ex  parte 


Bachelder  v.  Lovely   .     .     . 
Backenstass  v.  Stahler's  Admra 


;i. 


PAGE 

598 
566 
479 

201 

U7 
210 
164 
829 
5  15 
622 
622 

45 
350 
555 
70(i 
455 
215 

45 
801 
728 
520 
554 
531 
599 

531 
432 
685 
622 
454 
432 
82S 
706 
1S8 
572 
572 
573 
572 
566 
827 


497 
164 


Bacon  v.  Cobb   .     . 
Bagwell  v.  Babe 
Bailey  v.  Hoppin    . 
— — —  v.  New  York 
Baird  v.  Katcliff     . 

v.  Supervisors 

Baker  v.  Jewell .     . 
Ball  v.  Slack      .     . 
Ballentine  v.  No.  Mo.  R.  Co. 
Ballew  v.  Alexander    .     .     . 
Baltimore,  &c.  R.  Co.  v.  Fifth  B 
Church 


ipt 


v.  Kemp 
v.  May  . 
v.  School  Dist 
*•.  Sulphur  Spr 

&c.  Dist, 
v.  Woodruff 


Bangor  House  Proprietary  v.  Hinck- 
ley     

Bank  v.  Bonney 

v.  Groves 

v.  Rollins 

Hank  of  Rochester  v.  Monteath 

Harlow  v.  Myers 

Barnard  v.  Shirley       .... 
Barnes  v.  District 


Barry  v.  Foyles 

Bell  c.  Adams 

v.  Hansley 

v.  Layman 

v.  Twilight 

Bellinger  v.  N.  Y.  Cent.  R.  Co. 

Bennett  v.  Ford 

v.  Waller 

Benson  v.  Morrow 

Bentley  v.  Harris 

Bernier  V.  Russell  .... 
Bevard  v.  Hoffman  .  .  •  . 
Bigelow  v.  Randolph  .     .     .     . 

Bird  v.  Bird 

v.  Smith    ...... 

Bixby  v.  Dunlap 

Bizzell  v.  Booker   .... 


■> 
49/ 
()22 
801 
828 
164 
479 
233 
506 


666 
174 
546 
209 
ings, 
23t 
307 


685 
546 
405 
546 
173 
706 
762 
622 
171 
497 
210 
164 
497 
665 
209 
497 
479 
424 
532 
532 
621 
457 
391 
72S 
209,  216 


I, 

31, 

i, 


XX 


TABLE   OF    AMERICAN   CASES. 


Co 


Blackmail  v.  Webb      .     . 
Blakeslee  v.  Mobile  Lis.  Co 
Blauchard  v.  Baker 
Bliss  v.  Greeley 
Blood  v.  Blood  .     . 

v.  Harrington 

Bloodgood  v.  Avers 
Blymire  v.  Boistle  . 
Blythe  v.  Deliver,  &c 
Board  v.  Hackett    . 
Boardmaii  v.  Gore  . 
Bobo  v.  Patton  .     . 
Bolianou  v.  Pope    . 
Boliou  v.  Bohon 
Bolivar   Mauuf.   Co. 
Mauuf.  Co.     .     . 
Bonesteel  v.  Todd  . 
Bonslog  v.  Garrett 
Bonsteel  v.  Vanderbili 
Bootli  v.  SpuytenDuyvil 
Bosley  v.  Chesapeake  lus 


X 


K. 


Boston,  &e.  R.  Co.  v.  L1 
Boston    Rubber    Co.    v 

Wringer  Co.  .     .     . 
Bosion  Type  Foundry  v. 
Bostwick  v.  iMenck 
Boulter  v.  Hamilton 
Bourlier  v.  Maeauley 
Bowker  ?'.  Childs    . 
Bowman  v.  Teall    . 
Bowne  v-  Joy     .     . 
Boyd  v.  Hitchcock 
Brackett  v.  Sears    . 
Bradlie  o   Maryland  I 
Brewer  v.  Maurer  . 

v-  Union  Ins   Co 

Brick  v.  Plymouth  Co 
Bright  v.  Call'inan  . 
Brinley  v.  Avery     . 
Briston  v.  Lane 
Broadbent  v.  Imperial 
Brooklyn  Bank  V.  l)e 
Brooks  v.  Martin    . 

— i v.  White     . 

Brown  v.  Collins     . 

v.  Harris     . 

v.  Illius 

v.  Johnson 

v.  Kendall  . 

—  v.  O'Brien 

v.  Phillips  . 

v.  Railroad  Co 

— v.  Vandyke 

v.  Warram 

v,  Watson 

Browning  v.  Springfield 
Bruen  v.  Hone  . 
Brumby  v.  Smith 
Brunson  v.  Martin 


1a 
Peerless 

Spooner 


554, 


ponset 


M.Co. 

o.       36 


190 


Co.     . 


-light  Co 
uw     . 


.       302, 

208,  209, 

208,'  760, 


431, 

598, 


S02 
497 
555 
761 
418 
191 
761 
70li 
233 
431 
566 
351 
706 
49/ 

555 
183 
431 
350 
348 
,  15, 
130 
566 


403 
191 
559 
49/" 
72s 
392 
23:^ 
546 
398 
801 

36 
706 

20 
403 
432 
190 
706 
600 
400 
4.S.S 
398 
271 
349 
763 
183 
208 
7(16 
497 
367 
446 
173 
59'.) 
62-? 
4  V 


.PAGE 

Buchanan  V.  Comstock     ....  559 

Buel  v.  Selz 424 

Buffum  v.  Tilton 190 

Bull  v.  Bull 391,  403 

Bullard  v    Raynor 432 

v.  Roger  Williams  Ins.  Co.  Ill 

Bullock  v.  Babcock 210 

Bunge  v.  Koop 391 

Burden  v.  McElmoyle      ....  432 

Burr  c.  Beers 705 

Burroughs  v.  Housatonic  Ry.  Co.  b07 

v.  Saterlee 761 

Burrows  v.  Pixley 598 

Burston  v.  Jackson 497 

Burl  v.  Brewers',  &c.  Ins.  Co.       .  112 

Butt erBeld  «.  Byron 34S 

Butterworth  v.  Hoe 828 

Bvbee  v.  Hageniaii 497 


Cabe  v  Jameson    .     . 
Calnll  v.  Eastman    .     . 
Calking  i\  Baldwin 
Callanan  v   Gilnian 
Campbell  v.  Smith  . 

c.  Wallace   . 

Cannon  v.  Barris     . 
Canton  Cotton  Warehouse  v 
Cape  Girardeau,  &c.  R.  C 

me.l 

Capen  v.  Poster      .     .     . 
Carman  v.  Railroad  Co.   . 
Caroon  v.  Rogers  . 
Carpenter  v.  Kent 
v.  Stevens   . 


Carr  v.  Security  Ins.  Co. 

v.  State      .... 

Carroll  i\  Staten  Island  R. 
Carson  v.  Railroad  Co.     . 
Carter  v.  Bennett   .     .     . 

v.  Harrison      .     . 

Carver  v.  Coffmau  . 


Co 


Case  t'.  llotchkiss  .  .  . 
Cassady  v.  Clarke  .  .  . 
Castle  v.  Duryea  .  .  . 
( "aughey  v.  Smith  . 
Central,  &c.  Co.  v.  Kent 
Chahoon  v.  Ilollenliack  . 
Chambers  v.  Baldwin  .  . 
Chapman  v.  Atlantic.  &c.  R 

v.  Copeland 

( 'base  v.  Silvcrstone    .     . 
( 'hat  held  v.  Wilson  .      .     . 
Cliaizel  v.  Bolton  .     .     . 
Chesapeake  Ins.  Co.  v.  Star 
Cliesley  v.  King 
( '    ieau'o  r.  Saimlass 

rw ,  fro.  R.  Co.  v.  Hall 

v.  Penned 

—  v.  Sawyer      209 


Pott 
v.  Ki 


760, 


402 
272 
685 
600 
706 
165 
566 
598 

431 
531 
367 
682 
446 
351 
36 
827 
209 
7  ii3 
801 
5X1 
457 
4:2 
348 
210 
728 
20S 
165 
72S 
307 
554. 
960 
763 
545 
140 
761 
621 
665 
307 
233 


TABLE    OF    AMERICAN    CASES. 


XXI 


Child  v.  Boston  .... 
Childress  v.  Emory  .  .  . 
Chope  r.  Eureka  .... 
Clirisman  v.  Bruce  .  .  . 
Chubbuck  p.  Vernam  .  .  . 
Cliurcli  v.  Bedient  .... 

v.  Frost      .... 

Cinciuuati  Ins  Co.  v.  Bakewell 

c.  Duftiek 

Cit\  of  Dayton  r.  Pease  . 
— ! —  Demopoiis  v.  Webb  . 

Emporia  v.  Soden 

Newcastle  p.  Runey 

Tiffin  v.  McCormack 

Claire  v  Claire 

Clapp  v.  Pawtucket  Inst. 
Clark  v.  Abbott      .... 

p.  Baker • 

v.  Basse 

v.  Franklin    .... 

v.  Te unison    .... 

v.  Warner      .... 

Clarkson  v.  Phoenix  Ins.  Co. 
Cleary  v.  Sohier  .... 
Clendinen  p.  Black  .  .  . 
Clinton  Bank  p.  Hart  .  . 
Clinton  v.  Myers  .... 
Coal  Co.  v.  Sanderson  .  . 
Coal  Creek  M.  Co.  v.  Ross  . 
Cobb  v.  Arundell  .... 
Coffee  v.  Eastland  .  .  .  164 
Cogswell  o.  N.  Y..  &c.  R.  Co. 


349 


349 


17 
307, 


Cohen  v.  Charleston  F.  &  M.  Ins. 

Co 36, 

Col  burn  v.  Mason 

Cole  v.  Fisher 

Collard  p.  Crane 

Collier  v.  Valentine 

Collins  v.  Chartiers  Valley  Gas  Co. 

v.  Lemasters 

Colt  v.  Mc.Mechcn 

Colton  v.  Onderdonk 

Commonwealtli  v.  Frost  .... 
Condict  v.  Grand  Trunk  R.  Co. 

Conkey  v.  Kingman 

Conrad  v.  Ithaca    ....      621, 

Conway  p.  Reed 

Cook  v.  City  of  Burlington  .     .     . 

• v.  Darby 

p.  Litchfield 

v.  McCabe     ....       349 

p.  Mc(  'lure 

Coombs  v.  Williams 

Copelin  p.  Phoenix  Ins.  Co.  .     .     . 

Corning  p.  Corning 

Cory  v.  Silcox 

Cossman  v.  West 

Covanhovan  v.  Hart 

Cox  t'.  Skeen 


I.^i 
191 
622 
531 
446 
19 
559 
l;;(i 
155 
621 
572 
761 
572 

2;  3 

431 
164 
398 
497 
349 
350 
202 
195 
2D 

,  350 
801 
183 
763 
763 
497 
431 

,  174 
665. 
666 

110 
457 
210 
191 
231 
762 
182 
233 
272 
682 
231 
191 
7^7 
210 
479 
566 
5  16 
350 
479 
191 

36 
210 
554 

45 
763 
706 


Coxe  v.  Gulick  .     .     . 
( !raig  v.  Peo]  1  • 

v.  U.  S.  Ins   Co. 

Craighead  v.  Bank 
( Iraue  v   Waggoner     . 
Crauford  v.  Tyrrell 
Creed  v.  Banmann 
Creighton  v.  Evans 
Croiniueliu  v.  Coxe 
Crooker  v.  Bragg    .     . 
Crosby  v.  Bennett  . 
v.  Fitch      .     . 


454 


553- 


Cross  v.  Guthery 

p.  Moore 

Crossmau  v.  Universal  Rubber  Co. 

Culla  «'    Beadieston 

Cunninghaui  v.  Railroad  Co. 
Culler  v.  Bouuey 


Dale  v   Bartley 

D  miel  v.  Swearengen 

Daniels  v.  Balleutiue 

v.  Hatch     . 

v.  Keokuk  Water  \\ 

Dart  v.  Dart  .... 
Davidson  v.  Thompson  . 
Davis  v.  Fuller  .... 

v.  Willis    .... 

Davy  v.  Hallett      .     .     . 
Day  v.  N.  Y.,  &c.  R.  Co. 
Deal  v   Bogue    .... 
De  Armond  p.  Bohu    .     . 
Del)lois  v.  Ocean  Ins.  Co. 
Deland  v.  Hiett       .     .     . 
Dement  v.  Rokker. 
Deming  v.  Grand  Trunk  R. 
Denny  v.  N.  Y.  Cent.  R.  Co 
De  Peau  v.  Russell      .     . 
Dermott  v.  Jones   . 
Detroit  v   Blakeby 
Detroit,  &c.  R.  Co.  p.  For 
Dewey  v.  Alpena  School  Di 
Dexter  v.  Norton   .      .      . 

v.  Providence  Aqned 

Dickerson  v.  Talbot     .     . 
Dickey  p.  American  Ins.  Co 
v.  Ijciuscott     . 


Co 


Dill  v.  White  .... 
Diller  v.  Brubaker  .  .  . 
Dist.  Township  v.  Smith  . 
Dodge  v.  Commissioners 
Dodson  v.  Hays  .  .  . 
Doe  p.  Dowdall       .      .      . 

v.  Penfield      .     .     . 

Dole  v.  Erskine  .  .  . 
Donohue  v.  Woodbury  . 
Dorr  v.  New  Eng.  M.  Ins. 

v.  Union  Ins.  Co.    . 

Doster  v.  Brown  .  . 


bes 
st. 


uct 


Co. 


451 


347 


PAGE 

190 

572 
20 

4: 12 
455 
599 
18S 
554 
59S 
555 
685 
233 
566 
432 
545 
418 
827 
208 


202 
728 
215 
391 
666 
497 
456 
5  5  5 
174 
155 
438 
161 
545 

36 
391 
165 
350 
234 

19 
347 
622 
438 
347 
348 
762 
497 
130 
350 
18:5 

400 
348 
367 
455 
496 
191 
210 
402 
20 
140 
350 


XX 11 


TABLE    OF    AMERICAN    CASES. 


Doswell  v.  Buchanan  . 

Douglas  v.  Cliapin  .  . 
Douglass  v.  Phoenix  Ins. 
Dow  v.  Johnson 

Drake  v.  Brander  .  . 

v.  White     .  . 

Draper  v.  Hitt  .     .  . 
Dresser  v.  Dresser 

Driukard  v.  Ingrain  . 

Dudley  v.  Briggs    .  . 

v.  Mayhew 

Dumont  v.  Kellogg 
Dunbar  v.  Johnson 

Dutilh  v.  Gatliff     .  . 

Dygert  v.  Bradley  .  . 


Co 


20 


Railro 


ad 


Earl  v.  Shaw      .     . 
Early  v.  Friend 
East  v.  Cain  .     .     . 
Eastman  v.  Meredith 
Eaton  v.  Boston,  &c. 
Edsall  r.  Merrill     . 
Elile  v.  Purdy    .     . 
Elliot  v.  Porter 
Ellis  v.  Ellis  .     .     . 
Ellsworth  v.  Eogg  . 
Elwell  v.  Burnside 
Embree  v   Hanna  . 
Embry  ».  Devinney 
Erwin  v.  Scot  ten    . 
Evans  v.  Wells  .     . 
Eve  v.  Mosely    .     . 
Everts  v.  Beach 
Exchange  Bank  v.  Rice 


Fahn  ik  Reichart    .     .     . 
Fair  i'.  Stickney  Farm  Co. 
Farmers',  &c.  Bank  v,  Polk 
Farnum  v.  Peterson     .     . 
Fenwick  v.  Phillips      .     . 
Fergusson  v.  Brent 
Ferrall  v.  Bradford      .     . 
Ferry  v   Stephens  . 
Field  v.  N.  Y.  Cent.  R.  Co. 
Fielder  v.  Childs     .     .     . 
Fillew  v.  Besley      .     .     . 
Flaherty  v.  Mo  ran       .     . 
Fogg  v.  Nevada,  &c.  Ry.  C 

v.  Virgin  .... 

Fosdick  v.  Gooding     .     . 
v.  Norwich  Ins.  Co 


454. 


J  5 
183 


4-97 

173 
545 
78S 
545 
351 
392 
456 
448 
728 
685 
554 
432 
130 
215 


140 
45  G 
193 
G21 
GUI 
457 
1G5 
188 
193 
392 
45  G 
546 
191 
183 
405 
392 
455 
705 


Fossion  v.  Landry .     .     . 
Foster  v.  Jack   .... 

v.  Lookout  Water  Co 

t\  Tucker     .     .     . 

Foulke  v.  San  Diego,  &c.  R 
Fowler  v.  Jenkins  .     .     . 
v.  Smith     .     .     . 


Co 


209 


20S 
41 S 
418 
497 
392 
215 
182 
392 
307 
455 
347 
764 
599 
173 
1G5 
112 
598 
801 
622 
566 
438 
763 
39S 


Francis  v.  Schoellkopf 
Frazier  v.  Brown    . 
Freas  v.  Truitt  .... 
Freeland  v.  Heron 
Freeman  v.  Howell 
Fugure  r.  Mut.  Soc  . 
Fuller  v.  Kemp       .     .     . 

v.  McCall       .     .     . 

Fulton  Ins.  Co.  v.  Goodman 


PAGE 

59S 
700,  7G2 
432 
431 
431 
705 
402 
141) 
130 


Gaffney  v.  Peeler 

Gallagher  v.  Dodge 

Galveston  v.  Posnainsky 
Gal  way  v.  Met.  Ry.  Co.        .     .     . 
Gandy  v.  Chicago,  &e.  R.  Co.  .     . 
Gardner  v.  Columbian  Ins.  Co. 
Garland  v.  Towne  ....       208, 

Garr  v.  Redman 

Gates  v.  Steele 

Gault  v-  Humes - 

Gciser  v.  Kershner 

Geismer  v.  Lake  Shore,  &c.  R.  Co. 
Georgetown  v.  Canal  Co. 
Georgetown,  Ac.  H.  Co.  v.  Doyle  . 
r.  Eagles 


Gerow  v.  Providence,  Washington 

Ins.  Co 

Gerrish  v.  Clough 

Gibbes  v.  Beaufort 

Gibson  v.  Prestou 

Gilbert,  &c.  Co.  v.  Butler     .     .     . 

Gilberl  v.  Diekerson 

Gilchrist  i\  Association    .     .     .     . 

Gillert  v.  Hallett 

Gillespie  v.  Palmer 

Gillett  v.  Maynard 

Gilmore  v.  Carman 

Gihnour  v.  Ewing 

Gladfelter  v.  Walker 

Glaessuer  v.  Anheuser,  &c.  Ass 'n  . 
Giendon  Iron  Co.  v.  Uhler  .  .  . 
Globe  Ins.  Co.  v.  Sherlock  .  .  . 
Godfrey  v.  City  of  Alton. 
Goetchius  v.  Matthewson 
Goldman  v.  Rosenberg  . 
Gomila  v.  Hibernia  Ins.  Co 
Gordon  v.  Goodwin  .  . 
v.  Moore    .     . 


31 


Gorhani  v.  Gross  .  .  . 
Gould  v.  Hudson  R.  R.  Co. 
Governor  v.  McEwen 
Graven  v.  Sholl  .  .  • 
Gray  v.  Barton  .... 
Green  v.  Weaver  .  .  . 
Greene  v.  Linton  .  .  . 
Greenleaf  v.  Francis  .  . 
Grider  r.  Apperson  .  . 
Griggs  v.  Austin  .  .  . 
Guille  v.  Swan  .... 


760 


497 
763 
622 
448 
307 
140 
274 
424 
392 
209 
400 
233 
572 
GOO 
367 

36 
479 
622 
621 
348 
164 
431 

36 
531 
438 
233 
545 
554 
599 
761 

46 
479 
532 
348 

45 
164 
392 
272 
664 
418 
554 
392 
554 
350 
,  763 
190 
349 
210 


TABLE    OF    AMERICAN    CASKS. 


.Will 


Haas  v.  Choussard 

liagan  v.  Campbell 

Hague  v.  Wheeler  . 

Haight  v.  Badgeley 

Haldem'au  v.  Bruekhart  .     .      761. 

Hall  v.  Carpen  .     . 

Hallett  c  Gumston 

r.  Pevtoa  . 

v.  Wylie     . 

Halsey  i».  McCormick 
Ham  o.  Ham 
Ha  in  by  v.  Wall       . 
Hamden  v.  N.  H.  R.  Co 
Hamilton  v.  Whitridge 
Hancock  v.  Day      .     . 

v.  Yaden  .     . 

Hand  r.  Baynes 

v.  Kennedy   . 

Hannon  v.  St.  Louis  Co. 
Hanson  v.  McCue 
Harden  v.  Campbell    . 

v.  Cullins  .     . 

Hare  c.  Van  Deusen  . 

Hargrave  v.  Conroy    . 

Harland  v.  Lilienthal  . 

Harley  v.  Eleventh  Ward  Bauk 

Harmony  v.  Bingham      .     .       348, 

Harris  v.  Frink 

v.  Harris    . 

v.  Rand 

Harrison  v.  Close  . 

v.  Missouri  Pac.  R.  Co. 

Hart  v.  Fitzgerald 

v.  Gregg    .     . 

Harvey  v.  Gt.  No.  R.  Co.    .       54* 
Harwick  v.  Patrick     . 
Haskell  v.  New  Bedford 
Haskett  v.  Flint      .     . 
Haskms  v.  Royster     . 
Hatch  v.  Spofford  .     . 

v.  Vt.  Cent.  11.  Co 

Hathaway  v.  Hagau 
Hause  v.  Hause 
Hawkins  v.  Ball's  Adm'r 

■  v.  HolFinan 

v.  Long        .     .     .      431, 

Hay  v.  Cohoes  Co.      ...      272, 

Hayden  v.  Merrill  ....       455, 

Baynes  v.  Church  .     . 

Hays  v.  Tabor  .     .     . 

Haywood  v.  Chcstney 

Hazeltine  v.  Case   .     . 

Health  Dep't.  v  Purdon 

Hearn  v.  Kiehl  .     .     . 

Heeg  v.  Licht    .     .     . 

Helena  v.  Thompson  . 

Henderson  v..  Hammond 

Hepburn's  Case 

Herbner  v.  Eagle  Ins.  Co. 

Hern  v.  M'Cauffhan 


554 

47!) 
7<>^ 
728 
763 
705 
42 1 
130 
:350 
479 
497 
45  i 
600 
599 
15  1 
400 
350 
700 
('■•J  2 
762 
-105 
1-97 
559 
349 
801 
446 
350 
438 
438 
233 
391 
350 
164 
497 
546 
497 
621 
705 
728 
545 
605 
418 
455 
348. 
174 
432 
273 
450 
348 
497 
193 
621 
573 
392 
272 
622 
174 
560 
45 
174 


I  lev  wood  v.   Tillson  .... 

Higbi  e  v.  Camden  &  Amboy  R.  Co 

Hill  v.   Boston  . 

Billiard  v.  Noyes   .     . 

lliliiker  v.  Loop     .     . 

Hills  v.  Sommer 

Hinds  v.  Barton     .     . 

Hinc  c.  Houston     . 

Hinkle  v.  Railroad  Co. 

Hinkley  v.  House  of  Ref 

Hodgdou  v.  Railroad  Co 

1  [offaT  v.  Dement   ....      104, 

Holhs  v.  Chapman 

Holloway  v.  Holloway 

llolvoke  v.  Loud    ....      10 

Hooper  v.  Henry    .     . 

c.  Jellison 

Hopkins  v.  Richardson 

Horlon  v.  Cook 

Houck  v.  Wachter 

Hoifgan  i\  Milwaukee,  &c.  R.  Co 

llowk  v.  Miniiick  . 

Howland  v.  India  Ins.  C 

v.  Marine  Ins.  Co 

o.  Vincent     . 

Hub  bell  v.  Gt.  West.   Ins.  Co.    36 

Huff  v.  McDonald  .     , 

r.  Wat  kins      .     , 

Hulett  v.  Swift  .     .     , 

Hulme  v.  Slireve    . 

Hummel  v.  Brown 

Humphries  v.  Dawson      .     .       190. 

Hutchings  v.  Miner    , 

Hutchinson  v.  Brock  . 

Hut  son  c  Mayor    . 

Hyatt,  v,  Adams      .     , 

Hyde  v.  Louisiana  State  Ins.  Co. 

Hydes  v.  Joyes 


728 

598 
021 
403 
164 
K)2 
20S 
173 
403 
201 
347 
431 
349 
157 
173 
497 
191 
438 
173 
599 
761 
506 
70 
30 
703 
,45, 
155 
455 
728 
20S 
554 
191 
545 
706 
190 
829 
566 
36 
•545 


Ide  v.  Fassett    • 351 


Inhabitants  of  Deerfield  v   Arms    . 

■  Milford  v.  Holbrook 

Insurance  Co.  r.  Fogarty 
v.  Gossler 


Iron  Co.  v.  Uhler 
Irvine  v.  Irvine 
Israel  v.  Israel  . 
Izard  v.  Bodine 


455 


479 
187 

40 

46 

763 

497 

456 


455,  450,  457 


Jackson  v.  Bush 

v.  Henry 

v.  Littell 

Jacobs  v.  Allard 

v.  Bull 

Jaffray  v.  Davis 
Jeffries  r.  Aukeny 
Jenkins  i\  Collard 


496 
190 

497 
272 
201 
391 
532 
496 


XXIV 


TABLE    OF    AMERICAN    CASES. 


Jenkins  v.  Fowler  ....... 

v.  Waldron      .     .     .       531, 

Johannes  v.  Phenix  Ins.  Co. 
Johnson  v.  Jordan       .... 

v.  Kichardson       .     .     . 

v.  Thirteen  Bales  of  Goods 

v.  Toulmiu      .... 

v.  Walker 

Johnstown    Cheese   Manuf.   Co. 

Veghte 

Jones  v.  Bullitt      ....       391, 

v.  Judd 

v.  Nelson's  Ex'x       .     . 

v.  New  Haven      .     .     . 

v.  Perkins        .... 

v.  Pitcher 

v.  Ransom       .... 

v.  Thomas       .... 

Joslin  v.  Car  Co 

Julian  v.  Boston,  &c.  R.  Co.     . 
Jumel  v.  Marine  Ins.  Co.      .     , 


763 
533 
706 
621 
161 
191 
448 
350 

762 

392 
349 
191 
622 
392 
173 
405 
706 
706 
497 
20 


Kean  v.  Connelly    . 
Kelley  v   Seward    . 
Kendall  v.  United  States 
Kennard  v.  Carter 
Kennedy  v.  Bait.,  &c.  Ins 
Kent  v.  Reynolds  . 

v.  Watson 

Kimmel  v.  Bcnna 
King  v.  Brown 

v.  Coit       .     . 

Kinnaird  v.  Standard  Oil 
Kirkman  v.  Vanlier 
Klumpke  v   Baker 
Knight  v.  Russ 
Knott  v.  Cunningham 
Knowles  v.  Kennedy 
Koek  v.  Bonitz 
Kopper  v.  Dyer 
Kraut  v.  Crawford 
Kromer  v.  Heim     . 


Ladd  v.  Poster  .  . 
Lady  Pike,  The  . 
Lal.r  v.  Met.  El.  R.  Co. 
Lakeman  v.  Pollard 
Lamar  v.  Browne  . 
Langdon  v.  Roane 
Lansing  v.  Smith  . 
—  r.  Toolan  . 
Billmyer 
Curtis   . 


Co. 


Co 


Lafever  v. 
Lapliam  v, 
Lamed  v.  Wheeler 
Lauer  v.  Bandow 
Lawrence  v.  Fox   .     . 
Leach  v.  Beatties  . 
Leavenworth,  &c.  R.  Co 


v.  C 


454,  456 
497 
828 
183 
155 
392 
497 
497 
43  S 
191 
762 
418 
497 
802 
188 
496 
431 
215 
479 
400 


215 
209 
665 
350 
788 
445 
599 
622 
418 
273 
531 
183 
70fi 
45  !• 
307 


131 


Leavitt  v.  Morrow 
Le  Barrpu  v.  Babcock 
Lee  v.  Boardrnari   .     . 

r.  West      .     .     . 

Leopold  v.  Salkcy 
Le  Page  v.  McCrea  . 
Lewis  v.  Flint  .  .  . 
Lincoln  v.  Hapgood  . 
Lindsay  v.  Freeman  . 
Little  v.  Banks        .     . 

v.  Staabaeh    . 

Livezey  v.  Philadelphia 
Locke  v.  White  .  . 
Lockwood  v.  N.  Y.  &  II 

• v.  Nye    .     . 

v.  Thome    . 

Lofton  v.  Vogles  . 
Long  v.  Penu.  R.  Co. 
Looby  v.  West  Troy  . 
Lord  v.  Wheeler  .  . 
Losee  v.  Buchanan 
Louisiana  v.  Jumel 
Louisville,  &c.  R.  Co.  v.  R 
Lovingston  v.  County  of  St 
Low  v.  Kuowlton  . 

v.  Mumford    . 

Lowry  r.  Hall    .... 
Lund  v.  New  Bedford 
Lurtoii  r.  Gilliam  . 
Lybe's  Appeal    .... 
Lyman  v.  Albee      .     .     . 

v.  Boston,  &c.  Ry. 

v.  Brown    .     .     . 


19, 


173, 


It.  Co. 

'431, 

233, 

318. 
273. 


chardson 

Clair 


398 
455 
130 
728 
350 
39S 
209 
531 
497 
706 
554 
208 
497 
479 
545 
432 
566 
234 
402 
349 
275 
S2S 
307 
479 
598 
18S 
5  15 
554 
173 
761 
191 
307 
190 


273, 


Min. 


705 
00k 


McAndrcws  v.  Collerd 
M'Arthur  v.  Ladd       .     . 

v.  Sears 

McBride  v.  Marine  Ins.  Co 
McClelland's  Ex'r  v.  West's  Adm'r 
McCombs  v.  Akron      .     .     . 
McConoclne  v.  Sun  M.  Ins.  Co 
McCord  v.  Oakland  Quicksilver 

•  Co 

McCrae  v.  Hollis  .... 
McCullougli  v.  Colby  .  . 
McCusker  v.  McEvey  .  . 
McDaniels  v.  Bank  of  Rutland 

v.  Lapham 

McDonald  v.  City  of  Newark 
McGehee  v.  Hill    .... 
McJilton  (\  Love    .... 
McKean  v.  Reed     .... 
McKenzie  v  Culbreth     .     . 
Macknet  v.  Macknet  .     .     . 
McLanahan  v.  Wyant      .     . 
McLean  County  Coal  Co.  v.  Long 
McLellan  ».  Hauford 
MeNamee  v.  Withers 
McPherson  v.  Cunlilf 


667 
173 
233 

20 
432 
622 

36 

455 
4)5 
559 
496 
402 
402 
598 
347 
545 
400 
392 
201 
165 
166 
802 
438 
496 


TABLE    OF   AMERICAN   CASES. 


XXV 


McPherson  v.  McPherson  .  445 

Macticr's  Adm'rs  v.  Frith     .     .     .     348 
Mc Williams  v.  Nisley       ....     496 

Magruder  v.  Esmay 497 

Mahan  v.  Brown 763 

Mairs  v.  Manhattan,  &c.  Ass'n      .     272 
Manchester,  &c.  R.  Co.  v.  Concord 

R.  Co.       . 

Marbury  v.  Madison 

Marcarilier  v.  Chesapeake  Ins.  Co. 
Marine  Ins.  Co   v.  Tucker    .     .     . 

Marsau  v.  French 

Marsliall  v.  Delaware    Ins.   Co.  19. 


v.  Jones 

Marston  v.  Bigelow 

Martin  v.  Frantz    . 

Marvin  v.  Brooks 

Maryland,  &c.  Ins.  Co.  v.  Bathurst 

Mason  w.  Eld  red    . 

v.  Hall  .     . 

Mathews  c.  Kelsey 
Maurice  v.  Worden 
Maurer  v.  Miday    . 


Meares  v.  Town  of  Wilmington 
Mechanics'  Bank  v.  Huston 
Meech  v.  Ensign     .     , 
Melchoir  v.  McCarty 
Mellen  o.  Goldsmith    . 

v.  Whipple 

Mellon  v.  Louisiana  Ins.  Co.     . 
Memphis  &  Ohio  R.  Co.  v.  Hicks 
Merchants',  &c.  Co.  v.  Story     . 
Meredith  v.  Amdres    . 
Merrifield  v.  Lombard 

v.  Worcester 

Merritt  v.  Claghorn     . 

v.  Earle 

v.  Richardson 

Williams     . 

.  N.  Y.  Cent.  R.  Co. 
R.  Co.  v.  Burrows 


Metcalf  v 

Michaels  v. 

Mich.  Cent 

Mickles  v.  Dillaye  .     . 

Milhau  i>.  Sharp      .     . 

Miller  v.  Beal    .     .     . 

v.  Steam  Nav.  Co 

Mil  liken  v.  Brown  .     . 
Mills  v.  City  of  Brooklyn 
Mills  Pub.  Co.  v.  Larrabee 
Missouri  Pac.  R.  Co.  v.  Sha 
Mitchell  v.  Bunch 

v.  Gt.  Works,  &c.  Co 

v.  Hawley  . 

v.  Minis 

v.  Wheaton 

v.  Woodson 

Moale  v.  Hollins     . 
Mollie  Mohler,  The 
Moncrief  v.  Ely 
Monuiu  v.  Beroujon 


173 


ritt 


402, 


438 
827 
45 
20 
599 
44, 
130 
164 
398 
391 
418 
131 
1S2 
706 
600 
788 
174 
622 
392 
705 
432 
392 
705 
140 
600 
215 
457 
621 
621 
20S 
233 
202 
174 
215 
215 
497 
598 
801 
209 
392 
622 
827 
546 
545 
418 
405 
566 
391 
497 
183 
209 
685 
445 


PAGE 

Moore  t\  Maple 559 

v.  Russell 173 

Morgan  v.  Dibble 215 

v.  Dudley 531 

v.  Overman  Co 706 

Morning  Light,  The 209 

Morris  v.  Piatt 215 

Morris,  &c.  R.  Co.  v.  State       .     .  307 

Morrison  v.  Davis 234 

Morton  v.  Bradley 566 

Muldowney  v.  Morris,  &c.  R.  Co.  457 

Mullen  v.  Earle 559 

Mulvy  v.  Norton 479 

Municipality  u.  N.  O.  Cotton  Press  479 

Muuroe  v-  Stickney 554 

Munsou  v.  New  Eng.  Ins.  Co.  .     .  20 

Murphy  v.  Lowell 621 

v.  Ramsey       .     .     .       531,  532 

Murray  v.  Hatch 36 

Nasi)  v.  Primm  .......  566 

v.  Skinner 173 

Nashville,  &c.  R.  Co.  v.  David       .  234 

Neal  v,  Handley 391 

Nebraska  City  v.  Campbell  .     .      .  621 

Nebraska  v.  Iowa 479 

Nelson  v.  Odiorne 350 

Nelson's  Heirs  v.  Clay's  Heirs  .     .  455 

Nesbit  v.  St.  Patrick's  Church  .     .  418 

New  Albany,  &c.  R.  Co.  v.  Peterson  761 
Newark  Aqueduct  Board  v.  City  of 

Passaic 572 

New  Brunswick,  &c.  Co.  v.  Tiers  .  215 

Newell  v.  Cowan 566 

v.  Newton.     .     .     .       191,545 

New  Jersey,  The 209 

New  Orleans,  &c.  R.  Co.  v.  Hurst  174 

Nicholls  v.  Scott 801 

Nitro-Glycerine  Case 208 

Nixon  v.  Carco 497 

Noice  v.  Brown 728 

Norcross  v.  Thorns 598 

North  Bank  v.  Brown      ....  545 

Nourse  v.  Prime 445 

Nowlan  v.  Griffin 566 


Oakley  v.  Morion   .... 
O'Bauuon  v.  Paremour    .     . 
Oberndorf  v.  Union  Bank     . 
Ocean  Ins.  Co.  v.  Francis     . 
Ohio,  &c.  Co.  v.  Lackey  .     . 
Olivera  v.  Union  Ins.  Co.     . 
Oil  Co.  v.  Van  Etten  .     .     . 
Oliver  v.  Worcester    .     .     . 
O'Neill  v.  City  of  New  Orleans 
O'Reilly  v.  N.  Y.,  &c.  R.  Co. 
Orient  Ins.  Co.  v.  Adams 
On'  v,  Quimby 


347 

497 
391 
20 
209 
130 
431 
622 
622 
545 
130 
7ss 


XXVI 


TABLE    OF    AMERICAN    CASES. 


Osage  City  v.  Larkin 622 

Ottawa  Countv  0.  Auditor-General     827 


Packard  0.  Taylor  .     .     .     .     .     .  215 

Palmerton  v.  Huxford      ....  402 

Parker  v.  Griswold 555 

• v.  Huntington      ....  78 7 

v.  Lowell 621 

v.  Macomber 350 

Parkersburg  v.  Brown     ....  418 

Parrottw.  Wells 209 

Patterson  v.  D'Auteriue  ....  531 

Patton  v.  Freeman 566 

Paxton  v.  Boyer 208 

Payne  v.  Kansas  City,  &c.  R.  Co.  209 

Pearce  0.  The  Thomas  Newton      .  233 

Pearson  v.  French 193 

v.  Thomason   .     .     .     .     .  391 

Peck  ?'.  Carpenter 456 

Peele  v.  Merchants'  Ins.  Co.     .     .  130 

Peiree  v.  Ocean  Ins.  Co 45 

Penn.  Coal  Co.  v.  Sanderson     .     .  275 

Pennsylvania  R.  Co.  v.  Angell  .     .  667 
Pennsylvania     v.     Wheeling,     &c. 

Bridge  Co.      . 572 

Penrose  v.  Curren 191 

People  v.  Booth 572 

v.  Dulancy S27 

v.  Gold  Mining  Co.         272,  572 

v.  Halsey 828 

v.  Hamson 183 

v.  Judges 546 

v.  Manning 350 

v.  Pease 533 

v.  Smith      ......  828 

v.  Tubbs 350 

v.  Vanderbilt 572 

».  Young 6S2 

Percival  0.  Hickey 209 

Perkins  0.  Augusta  Ins.  &  B.  Co.  45 

0.  Lockwood        ....  392 

Peterson  v.  Haffner 210 

Pettingill  0.  Rideout 566 

Phelps  0.  Nowleu   ....      761,  763 

0.  Pond 520 

Philadelphia  t'.  Girard      ....  520 

Sec.  R.  Co.  0.  Anderson  215 

0.  Hendrick- 

s.m       .     .     . 307 

Phillips  0.  Pennywit 165 

Pico  v.  Columbet    .     .     .     .      455,  456 

Pierce  ?».  Jones        392 

v.  Lacy 191 

Pike  0.  Megoun 531 

Pittsburg  0.  Grier 622 

Pittsburgh,  &c.  R.  Co.  0.  Hazen    .  233 
Pixlev  0.  Clark        ....      272,  273 

Plaisted  v    Boston,  &c.  Co.        .     .  233 

Planters'  Bank  0.  Union  Bank       .  43S 


Piatt  0.  Chicago,  &c.  R.  Co. 

Plimpton  0.  Bigelow    . 
Plumleigh  v.  Dawson 
Plummer  0.  Webb 
Polack  0.  Pioche     .     . 
Pollard  0.  Shaaffer      . 
Porter  0,  Leache    . 
Potter  0.  Douglass 
Powell  0.  Pac.  R.  Co. 
Powers  v.  Spear     .     . 
Pratt  v.  Short    .     .     . 
Preston  r.  Grant     . 

v.  Hutchinson 

Price  v.  Grantz       .     . 

v.  Hartshorn 

Prince  0.  Ocean  Ins.  Co. 
Print  up  0.  Mitchell  . 
Prossen  i\  Chapman  . 
Providence  v.  Clapp  . 
Pulliatn  0.  Booth  .  . 
Pumphrey  0.  Mayor:  &c. 


Quimby  v.  Blackey 
Quvcy  0.  Baker 


RadclilY  0.  Mayor  . 
RadcliiPs  Ex'rs  0.  Mayor 
Ragan  0.  McCoy    . 
Rail  0.  Potts      .     . 
Railroad  Co.  0.  Church 

v.  Halloren 

v.  Reeves 

Rand  r.  Wright  .  . 
Randall  0.  Johnson  . 
Pandit'  <\  Lower  .  . 
Ranies  v.  Walker  .  . 
Ranch  0.  Dech  .  . 
Ravenswood  0.  Flemings 
Rawson  0.  Clark  . 
Raynsf'ord  v.  Phelps  . 
Read  0.  Fogg  .  .  . 
Reardon  0.  City  and  County 

Francisco 
Reaves  0,  Waterman 
Reeside  v.  Walker 
Rehill  r.  McTague 
Reid  v.  Hibbard     .     . 
Reinhart  0.  Hines  .     . 
Remington  v.  Palmer 
Reinlian  v.  Wright 
Respublica  v.  Sparhawk 
Reynolds  0.  Cook  .     . 

— ■ 0.  Wilmeth 

Rhea  0.  Newport,  &c.  R. 
Rice  0.  Manley        .     . 
Rich  0.  Eldredge    .     . 
Richardson  v.  Maine  Ins 
Richmond  ?••  Loiifj 

.  &c.  R.  Co.  v 

Rickard  v.  Stanton 


Be 


402, 

598, 


454, 


598 
546 
554 
728 
233 
350 
174 
403 
432 
173 
438 
403 
188 
599 
209 
70 
418 
190 
621 
431 
82S 

566 
497 

622 
599 
456 
531 
667 
208 
234 
432 
347 
497 
497 
496 
572 
349 
531 
497 


of 


San 


Co 


Co 


599 
233 
828 
132 

41  >5 
431 
$8 
402 
7ss 
496 
455 
600 
728 
432 
20 
622 
215 
438 


TABLE    OF    AMERICAN    CASKS. 


XXV11 


Rideout  v.  Kux      .     . 
Ripka  v.  Sergeant  . 
Rising  v.  Patterson 
Roath  v.  Driscoll    .     .     , 
Robbins  v.  Ayres    .     . 
Robertson  v.  Smith     . 

o.  Wright    . 

Robinson  v.  Chamberlain 

v.  Donthit  . 

v.  Greene     . 

v.  Smith 

Roche  v.  Milwaukee  Gas  Co 
Rogers  v.  Union  Stone  Co. 
Rose  v.  Hall      .... 
Ross  v.  Milne    .... 

v.  Overton 

Ross m an  t\  Townsend 
Rowe  v.  Granite  Bridge  Cor 
Rutty  v.  Person 
Rumsey  v.  N.  Y.,  &c.  R.  Co 
Russell  v.  Church       .     . 

v.  L.ytle       .     .     . 

• — v.  Rogers  . 

v.  Skipwith     .     . 

Rust  v.  Larue    .... 
Rutledge  v.  Moore      .     . 


760, 


Sabin  v.  Vt.  Cent.  R.  Co.     .     . 

Sage  v.  Laurain 

St.  Louis,  &e.  R.  Co.  v.  Hopkins 
Salmon  v.  Woolton      .     .     . 
Sample  v.  Broadwell    . 
Sandback  v.  Quigley    .     .     . 
Sanderson  v.  Perm.  Coal  Co. 
Sandford  v.  Ruckman      .     . 
Sargent  v.  Parsons      .     .   451,  455, 
Savage  v.  Everman      .     .     .       391, 

■ v.  Pleasants     ....    20, 

Sawyer  v.  Davis     .     .     . 
Scanlan  v.  Wright       .     . 
Schemerhorn  v.  Jenkins 
Schermerhorn  v.  Vanderheyden 
Schmidt  v.  United  Ins.  Co 
School  District  v.  Dauchv 

v.  Neil      . 

Schwartz  i\  Saunders 
Schweider  ».  Long 
Scoffins  v.  Grandstaff 
Scott  v.  Brown       .     .     . 

v.  Guernsey    .     .     . 

Seaman  w.'Whitney    '. 
Searles  v.  Manhattan  Ry.  Co. 
Seeley  v.  Brush 
Seguin  i\  Debon     .     .     . 
Seifried  v.  Hays      .     .     . 
Sessions  v.  Johnson     .     . 
Seton  v.  Delaware  Ins.  Co 
Seward  v.  Huntington     . 
Seymour  v.  Minturn  .     . 


182 


171, 


PAGE 

764 

554 
392 
763 
700 
173 
432 
829 
49/ 
202 
161 
209 
705 
39 1 
705 
350 
705 
572 
441) 
665 
445 
400 
392 
190 
801 
431 


367 
788 
209 
545 
788 
191 
272 
801 
457 
405 
140 
307 
165 
191 
705 

20 
347 
598 
349 
405 
497 
154 
456 
705 
209 
554 
347 
599 
188 

46 
706 
391 


Shcehy  v.  Mandcville 
Sheldon  v.  Kibbc    .     . 

v.  Sherman 

Shepard  v.  Bank     .     . 
Sherman  0.  Fall  River, 


&c. 


Sherwood  v.  Dist.  of  Colum 

— v.  Hall    .     .      . 

Shiels  v.  Stark  .... 
Shipley  v.  Fifty  Associates 
Shrewsbury  c.  Smith 
Singleton  v.  Carroll  .  . 
Slatten  v.  Des  Moines  R.  C 
Smiley  r.  Bell  .... 
Smith  v.  A  vis  worth     . 

v.  Black      .     .     . 

v.  Bowker  .     . 

v.  Brown    . 

v.  City  of  Albany 

v.  Cook       .     .     . 

v.  Davis      .     .     . 

0.  Ue  Russy    .     . 

v    Durell    .     .     . 

0.  Glens  Falls  Ins.  Co. 

v.  Lathrop       .     . 

v.  Lockwood  .     . 

v.  Thompson   .     . 

v.  Van  Houteu     . 

—  v.  Western  Ry.  Co 
v.  Williams 


PAUK 

182 
188 

208,  273 
43s! 
165 
622 
728 
456 
292 
273 
350 

599,  665 
418 
559 
183 
191 
392 
685 
174 
801 
497 
350 
432 
545 
685 
448 
191 

233,  234 
497 
554 
622 
233 
36 


Smiths  v.  MeConathy 

Smoot  v.   Mayor     .     .     , 

Sinvrl  v.  Niolon      .     .     . 

Snow  v.  Union  Mut.  Mar.  Ins.  Co 

Southard  0.  Hill     ....       166,  188 

So.  Car.  R.  Co.  v.  Moore     .     .     .     598 

Soiithcote  v.  Stanley  .     . 

South  Pac.  R.  Co.  v.  Dufour 

South  R.  Bank  v.  Suffolk  Bank 

Spalding  v.  Rosa    .     .     . 

Sparrow  v.  Kingman  .     . 

Spigener  v.  Cooner      .     . 

Spragins  v.  Houghton 

State  v.  Barker       .     .     . 

/'.  Burke    .... 

v.  Carpenter  .     .     . 

Rahwav      .     .     . 


v.  Smith 

v.  Wo  ram       .     .     . 

Steamboat  Co.  v.  R.  Co. 
St  sbbins  v.  Niles  .  .  . 
Steele  c.  McTyer's  Adm'r 
Stein  v.  Burden  ... 
Stenton  v.  Jerome  .  .  . 
Stetson  v.  Faxon  . 
Stevens  v.  Monges 

v.  Railroad  Co.    . 

Stewart  v.  Rutland      .     . 


—  v.  Southard 
v.  Stone     . 


Stiles  v.  Inman 


431 


621 
761 
763 
350 
497 
479 
531,  532 
827 
828 
572 
828 
6S2 
IT.1; 
598 
132 
233 
55  ! 
432 
598 
801 
66 ! 
600 
532 
348 
174 


xxvm 


TABLE    OF    AMERICAN    CASES. 


PAGE 

Stockton  v.  Frey 402 

Stockwcll  v.  Hunter 350 

Stodghill  o.  Chicago,  &c  R.  Co.    .  600 

Stone  v.  Cheshire  R.  Corp.  .     .     .  367 

v.  Stone 438 

Stoney  v.  M'Neill 173 

Storrs  v.  City  of  Utica    .     .     .     .  G22 

Story  v.  N.  Y.  El.  R.  Co.     .     .     .  665 

Strang  v.  Holmes 391 

Strome  v.  Wliitllesey 209 

Struthers  v.  Dunkirk,  &c.  Ry.  Co.  605 

Stuart  v.  Sears 415 

Superintendent  v.  Bennett    .     .     .  347 

Surtell  v.  Brailsford 191 

Sutton  v.  Bonnett  ....      209,  210 

Suydam  v.  Barber 1S3 

v.  Jenkins 351 

v.  Marine  Ins.  Co.  .     .     .  130 

Swett  v.  Cutis 272,  702 

Symonds  v.  Union  Ins.  Co.  ...  20 


Taber  v.  Cliina  Ins.  Co.  ...    36, 
Tassey  v.  Church   .... 
Taylor  v.  Fickas     .... 

v.  Hall 

Teasdale  v.  Charleston  Ins.  Co 


Tefft  o.  Munson     .... 
Terry  v.  Sickles      .... 

Tharp  v.  Tharp 

Thayer  v.  Boyle      .... 
Thomas  v.  Rockland  Ins.  Co. 

v.  Stickle  .... 

Thompson  v.  Bostick  . 

v.   Mississippi,  &c. 


Ins 


Co 
Thurber  v.  Sprague 
Thurmond  v.  Sanders 
Thwing  v.  AVashingfon  Ins.  Co 
Tillotson  v.  Kennedy 
Tinsmau  v.  Belvidere,  &c.  R.  Co 

Titus  v.  Weeks 

Todd  v.  Cochell      .... 
Tomlin  v.  Dubuque,  &c.  R.  Co 
Tompkins  v.  Dudley    .     .     . 
Town  of  Burlington  v.  Schwarzman 

Waltham  v.  Kemper 

Townes  v.  Birchett 
Townsend  v.  Jeffries'  Adm'r 
Towsley  v.  Denison     .     .     . 

r.  Healey    .... 

Trafnall  v.  Hill 

Trafton  v.  United  States  .  . 
Treat  v.  Stanton  .... 
Trubee  v.  Alden  .... 
Trust  &  Loan  Co.  v.  Covert 
Turner  v.  Hitchcock  .  .  . 
Tuttle  v.  Catlin  .... 
Twitchell  v.  Shaw  .... 


45, 


431 


110 
431 
76 1 
827 
130, 
154 
497 
432 
432 
566 
45 
497 
456 

20 
405 
431 

36 
497 
667 
202 
273 
664 
347 
572 
622 
432 
193 
432 
402 
418 
183 
706 
545 
497 
1SS 
705 
391 


Uhlman  v.  N.  Y.  Life  Ins.  Co. 
Uline  v.  N.  Y.,  &c.  R.  Co. 
Union  Bank  v.  Hodges    . 

v.  Knapp 

Union  Pac.  R.  Co.  v.  Hall 
United  Soc.  v.  Underwood 
United  States  v.  Ames 

v.  Black  .     . 

v.  Pac.  Railroad 

v.  Schurz      .     . 


Van  Alstync  v.  Dearborn 
Van  Atta  v.  McKinney  .  . 
Van  Buskirk  v.  Roberts  .  . 
Vandenburgh  v.  Truax  . 
Van  Duzer  t».  Howe  .  .  . 
Van  Rensselaer  v.  Kearney  . 
Varick  v.  Bodine  .... 
Yarnev  v.  Conery  .... 
Verrier  v.  Guillou  .... 
Village  of  Delhi  v.  Youmans 
Mankato  v.  Willard 


Vincent  v.  Stinehour  . 
Volkenninc  v.  De  Graaf  . 


Wadhams  v.  Swan       .  . 

Wadley  v.  Jones     .     .  . 
Wadsworth  v.  Woodford 

Waggoner  v.  Minter  .  . 

Ware  v.  Dudley      .     .  . 

Walker  v.  Cronin   .     .  . 

v.  Osgood  .  .  . 

v.  Shepardson 


41S 
665 

182 
431 

828 
188 
182 

S28 
788 
82-^ 


.  191 

.  801 

.  350 

.  210 

.  566 

.  496 

.  191 

.  398 

.  432 
761,  762 

.  496 

.  208 

.  431 


Co 


Wallace  v.  McConuell      .     . 
Wallenstein  v.  Columbian  Ins. 
AValsh  v.  Durkin    .... 
Ward  v.  Jefferson  .... 

v.  Johnson     .... 

Warner  v.  McMullin  .  .  . 
Warren  v.  Chambers  .     .     . 

v.  Skinner  .... 

Washburn  v.  Gilman  .  .  . 
Watkins  v  Wassell  .  .  . 
Watson  v.  Van  Meeter  .  . 
Watt  v.  Conner  .... 
Wattson  v.  Thibou  .  .  . 
Weaver  v.  Devendorf .  .  . 
Webb  v.  Browning     .     .     . 

v.  Portland  Manuf.  Co. 

Webber  v.  Barry    .... 
Weber  v   Couch     .... 
Weckerly  v.  Geyer      .     .     . 
Weed  Sewing  M.  Co.  v.  Emerson 
Weis  v.  Devlin  .... 
Welch  v    Durand    .     .     . 

v.  Dutton  .... 

Welles  r.  Bailey      .     .    . 


497 
559 
164 
445 
431 
728 
351 
598 
546 
36 
546 
622 
183 
415 
479 
402 
215 
497 
554 
418 
559 
533 
801 
5  5  5 
728 
391 
531 
497 
348 
210 
497 
479 


TABLE    OF    AMERICAN    CASES. 


XXIX 


PAGE 

Wells  v.  Calnan     ....      343,349 

Welsh  i7.  Village  of  Rutland     .     .  621 

Wesson  v.  Washburn  Iron  Co.       .  599 

West  t\  McConnell 545 

v.  West.  Un.  Tel.  Co.  .     .     .  706 

Western  M.  Co.  v.  Pevtouia  C.  C. 

Co 497 

Weston  v.  Dane S27 

Wetlierbee  v.  Potter 438 

Whealley  v.  Baugh      .     .     .       760-7(53 

Wli  at  v.  Rice 700 

Wheeler  v.  Worcester      ....  621 

Wheelwright  v.  Depuyster   .     .     .  164 

Whipple  v.  Mauuf.  Co 555 

Whitaker  v.  Hawley 350 

While  v.  Campbell 432 

w.  Fort. 566 

v.  Franklin  Bank     ....  438 

t7.  Hampton 432 

■ v.  Kuntz 392 

o.  Missouri,  &c.  R.  Co.     .     .  350 

Whifehouse    v.    Androscoggin   R. 

Co 367 

Whitney  v.  N.  Y.  Firemen  Ins.  Co.  155 

v.  Peay 43S 

v.  Stark 164 

Wiesuer  v.  Zaun 497 

Wilcox  v.  Wilcox 456 

Wilkenson  v.  McDougal  ....  35] 

Williams  v.  Allen 174 

v.  Dickinson 566 

v.  Esling 554 

y.  Grant 233 

■ v.  Gray 496 

v.  Mich.  Cent.  R.  Co.  .     .  208 


Williams  v.  Sutlon  .  .  . 
Wilmarlh  v,  Burt  .... 
Wilson  v.  Buell      .... 

v.  City  of  New  Bedford 

v.  McCormick      .    . 

p.  McEwan     .     .     . 

Riddle 


Winn  v.  Rutland    .... 
Winslow  v.  Slate    .... 
Winton  17.  Cornish 
Wolf  v.  Am.  Ex.  Co.  .     .     . 
Wolfe  v.  Howes      .... 
AYolke  v.  Fleming  .... 
Womack  v.  McQuarry 
Wood  v.  Lincoln,  &c.  Ins.  Co. 
Woodward  i?.  Washbura 
Woolever  v.  Khapp .     .     .     . 
Worden  v.  Sharp    .... 
Wrighl  v.  Clark      .... 

Wylie  v.  Case 

v.  Elwood       .... 


Yeaton  v.  Roberts  '.     . 
Yelverton  v.  Conant    . 
Yoho  v.  McGovern 
Young  v.  Adams      .     . 

ik  City  Council 

v.  Hill  •     .     . 

v.  Jones      .     . 

v.  Union  Ins.  Co 


272 


36 
454- 


Zabriskie  v.  Woodruff     .     . 
Zettel  v.  City  of  West  Bend 


PAGB 

18S 
788 
ls:i 
7M) 
174 
497 
418 
621 
72^ 
3:  0 

2  i :, 
S50 
438 
350 

;).-) 

28 
456 
438 
210 
801 
599 


201 
545 
183 
455 
622 
445 
400 
140 


801 
598 


RULING    CASES. 


ABANDONMENT 

And  Total  Loss  in  Marine  Insurance. 

Section      I.    Cases  where  Abandonment  may  be  made  and  Total  Loss  claimed. 
Section    II.     Where  Abandonment  is  necessary  in  order  to  claim  as  for  a  Total 

Loss. 
Section  III.     Total  Loss  without  Abandonment. 

Section  IV.     Criteria  of  Time  in  cases  of  Abandonment  and  Total  Loss. 
Section     V.     Effect  in  transferring  Rights. 


Section  I.  —  Cases  where  Abandonment  may  be  made  and 
Total  Loss  claimed. 

No.  1.  —  GOSS   v.    WITHERS. 
(k.  b.  1758.) 

RULE. 

The  capture  of  a  ship  by  the  enemy  is  a  loss  of  the  ship, 
and  entitles  the  assured,  unless  his  right  is  divested  by 
recapture,  to  be  paid  for  a  total  loss. 

Ship  and  goods  were  insured,  by  separate  policies,  for  a 
voyage.  The  ship  was  taken,  and  having  remained  in  the 
hands  of  the  enemy  for  eight  days,  was  re-captured  under 
such  circumstances  that  the  voyage  was  entirely  defeated. 
The  assured  on  both  policies,  having  given  prompt  notice 
of  abandonment,  were  held  entitled  to  recover  as  for  a 
total  loss. 

Goss  v.  Withers. 

2  Burr   68.3. 

This  was  a  special  case,  from  the  sittings  in  London,  upon  two 
actions,  on  two  distinct  policies  of  insurance :  one  upon  a  ship, 
and  the  other  upon  the  loading. 


ABANDONMENT. 


No.  1. — Goss  v.  Withers. 


The  former  was  an  insurance  upon  the  David  and  Rebecca,  at 
and  from  Newfoundland,  to  her  port  of  discharge  in  Portugal  or 
Spain,  without  the  Streights,  or  England ;  to  commence  from  the 
time  of  her  beginning  to  load  at  Newfoundland,  for  either  of  the 
above-named  places ;  and  it  was  upon  the  body,  tackle,  apparel, 
ordnance,  &c,  of  the  ship  ;  beginning  the  adventure  at  Newfound- 
land; and  to  continue  during  her  abode  there,  and  until  the  said 
ship,  with  all  her  ordnance,  tackle,  &c,  should  be  arrived  at  her 
port  of  discharge  as  aforesaid,  and  until  she  should  have  been 
moored  at  anchor  twenty-fours  in  safety.  It  was  to  be  lawful  for 
the  ship  to  touch  at  and  stay  in  any  port  whatsoever,  without  pre- 
judice to  the  insurance.  The  ship  was,  by  agreement,  to  be  valued 
at  the  sum  subscribed,  without  further  account.  And  in  case  of 
loss  or  misfortune,  it  was  to  be  lawful  for  the  assured,  their  ser- 
vants, &c,  to  sue,  labor,  and  travel,  for,  in,  or  about  the  defence, 
safeguard,  and  recovery  of  the  ship,  or  any  part  thereof,  without 
prejudice  to  the  insurance;  to  the  charges  whereof  the  insurers 
were  to  contribute,  2)r0  fata.  The  insurance  was  to  be  at  ten 
guineas  per  cent  ;  and  in  case  of  loss  to  abate  £2  per  cent.  And 
in  case  of  average-loss  not  exceeding  £5  per  cent  to  allow  nothing 
towards  such  loss.  And  if  the  vessel  discharged  without  the 
Streights,  excepting  the  Bay  of  Biscay,  two  guineas  per  cent  were 
to  be  returned  ;  and  if  she  sailed  with  convoy,  and  arrived,  two 
guineas  more  per  cent  were  to  be  returned.  The  plaintiffs  declared 
upon  a  total  loss  by  capture  by  the  French. 

The  policy  declared  upon  in  the  other  action  was  an  insurance 
upon  any  kind  of  lawful  goods  and  merchandises,  loaden  or  to  be 
loaden  on  board  the  aforesaid  ship;  which,  for  £7  7s.,  insured  £70. 
And  the  declaration  alleged  that  divers  quantities  of  fish,  and  other 
lawful  merchandises  to  the  value  of  the  money  insured  were  put 
(in  board,  to  be  carried  from  Newfoundland  to  her  port  of  destina- 
tion, and  so  continued  (except  such  as  were  thrown  overboard,  as 
is  after-mentioned)  till  the  loss  of  the  ship  and  goods.  The  dec- 
laration then  avers  that  a  quarter  of  the  said  goods  were  necessarily 
thrown  overboard,  in  a  storm,  to  preserve  the  ship  and  the  rest  of 
the  cargo  ;  after  which  jetson,  the  ship  and  the  remainder  of  the 
goods  were  taken  by  the  French. 

There  was  another  count  in  this  declaration  for  money  had  and 
received  to  the  use  of  the  plaintiffs. 

The  case  states  that  the  ship  departed  from  her  proper  port,  and 


SECT.   I.  —  WHERE    COMPETENT. 


No.  1.  —  Goss  v.  Withers. 


was  taken  by  the  French  on  the  23d  of  December,  1756 ;  and  that 
the  master,  mates,  and  all  the  sailors,  except  an  apprentice  and 
landman,  were  taken  out  and  carried  to  France.  That  the  ship 
remained  in  the  hands  of  the  enemy  eight  days,  and  was  then 
retaken  by  a  British  privateer,  and  brought  in  on  the  18th  of  Jan- 
uary to  Milford  Haven;  and  that  immediate  notice  was  given  by 
the  assured  to  the  assurers,  with  an  offer  to  abandon  the  ship  to 
their  care.  It  was  also  proved  at  the  trial  that  before  the  taking 
by  the  enemy  a  violent  storm  arose  at  sea,  which  first  separated 
the  ship  from  her  convoy,  and  afterwards  disabled  herself  so  far 
as  to  render  her  incapable  of  proceeding  on  her  destined  voyage, 
without  going  into  port  to  refit. 

It  was  also  proved  that  part  of  the  cargo  was  thrown  overboard 
in  the  storm,  and  the  rest  of  it  was  spoiled  whilst  the  ship  lay  at 
Milford  Haven,  after  the  offer  to  abandon,  and  before  the  ship  could 
be  refitted.  And  the  assured  proved  their  interest  in  the  ship  and 
cargo  to  the  value  insured. 

Several  questions  arising  upon  the  trial  of  the  first  of  the  said 
causes,  it  was  agreed  that  the  jury  should  bring  in  their  verdict,  in 
both  causes,  for  the  plaintiffs,  as  for  a  total  loss  ;  subject,  however, 
to  the  opinion  of  the  court  on  the  following  questions,  viz. :  — 

1st.  "Whether  this  capture  of  the  ship  by  the  enemy  was  or  was 
not  such  a  loss  as  that  the  insurers  became  liable  thereby. 

2dly.  Whether  under  the  several  circumstances  of  this  case  the 
assured  had  or  had  not  a  right  to  abandon  the  ship  to  the  insurers 
after  she  was  carried  into  Milford  Haven  ? 

This  case  was  twice  argued,  viz.,  first,  on  Tuesday,  6th  June, 
1758,  by  Mr.  Morton,  pro  quer\  and  Mr.  Serj.  Davey,  pro  clef ; 
and  again,  on  Friday,  10th  November,  1758,  by  Mr.  Norton,  pro 
que?'',  and  Sir  Richard  Lloyd,  pro  def. 

Mr.  Morton  and  Mr.  Norton,  on  behalf  of  the  plaintiffs,  argued 
for  the  affirmative  in  both  questions. 

They  previously  distinguished  between  cases  disputed  between 
insurers  and  insured,  and  those  between  owners  and  recaptors,  and 
observed  that  this  is  a  mere  contract  between  the  parties. 

First  point.  —  This  is  such  a  total  loss  as  renders  the  insurers 
liable  to  answer  for  it. 

They  said  they  would  consider  (1st)  what  an  insurance  is,  and 
(2dly)  what  a  capture  by  an  enemy  is. 

1st,  The  definition  of  an  insurance  is  in  Bynkershoek's  Ques- 
tiones  Publici  Juris,  lib.  i.  cap.  21. 


ABANDONMENT. 


No.  1.  —  Goss  v.  Withers. 


2dly.  A  capture  is,  when  there  is  no  just  ground  of  hope  of 
recovering  the  ship ;  then  it  becomes  the  property  of  the  captor. 
Grotius,  L.  3,  c.  6,  pa.  814,  De  Jure  Belli  et  Pacis.  "  Tunc  enim 
desperari  incipit  recuperatio,  &c." 

And  the  period  of  time  of  the  detention  is  another  rule  ;  viz., 
being  twenty-four  hours  in  potestate  liostium.  Indeed,  subsequent 
writers  do  not  fix  it  so  precisely ;  but  they  are  then  treating  only 
upon  salvage.1  Bynkershoek,  indeed,  differs  in  the  premises,  Lib. 
1,  c.  4,  Qupestiones  Juris  Publici ;  but  both  agree  in  the  conclu- 
sion ;  for  he  also  puts  it  upon  the  despair  of  the  recovery  of  the 
ship.  And  this  hope,  or  despair,  must  be  a  reasonable  and  just 
one  ;  not  a  whimsical  and  arbitrary  fancy  or  a  mere  wish. 

This  vessel  was  eight  days  in  possession  of  the  enemy,  near  a 
month  out  of  the  power  of  the  owners  (the  insured),  and  almost  all 
the  hands  taken  out.  So  that  by  the  terms  and  intent  of  the  insurance 
(which  must  be  taken  favourably  for  the  insured)  this  voyage  must 
be  taken  to  have  been  totally  defeated  to  the  insurers ;  the  adven- 
ture totally  stopt,  and  consequently  the  condition  broken  as 
between  the  insurers  and  the  insured. 

And  this  is  different  from  cases  of  salvage,  where  the  property  is 
not  altered  ;  but  the  marine  law  only  determines  what  shall  be 
paid  by  the  owner  for  the  salvage. 

This  is  a  total  loss ;  it  was  so  long  in  possession  of  the  enemy 
that  the  sjjes  recuperandi  was  gone. 

Though  the  ship  was  not  carried  into  port,  nor  within  the  ene- 
my's fleet,  yet  it  was  eight  days  in  possession  of  the  enemy ;  and  it 
might  have  been  as  many  months.  And  the  spes  recuperandi 
would  be  as  absolutely  gone  as  if  it  had  been  carried  into  the  ene- 
my's fleet,  out  of  which  it  might  possibly  be  immediately  retaken. 

Therefore  the  being  carried  infra  prmsidia  of  the  enemy  cannot 
be  the  true  rule  ;  but  the  true  and  certain  rule  must,  in  reason,  be 
where  the  spes  recuperandi  is  gone.  Indeed,  the  being  carried  intra 
prcesidia  may,  in  many  cases,  be  an  evidence  of  this. 

Now  upon  the  state  of  the  present  case,  all  hope  of  retaking  was 
totally  lost  and  gone. 

However,  the  principle  of  this  case  is  not  new.  For,  by  com- 
mon law,  the  thing  taken  from  the  owner  in  war  is  gone,  unless 

1  Vide  39  G.  II.  c.  34,  p.  572,  §  24  (the  paving  a  salvage  in  proportion  to  the  time 
Prize  Act),  which  directs  "  that  retaken  they  were  in  the  possession  of  the  enemy." 
ships  shall  be  restored  to  the  owners,  they 


SECT.   I. WHERE    COMPETED. 


No.  1.  —  Goss  v.  Withers. 


the  owner  makes  fresh  pursuit ;  and  the  property  of  the  thing 
so  taken  in  war  belongs  to  the  captor.  And  the  common-law 
rule  is,  that  in  a  war  the  captor  of  a  ship  has  a  right  to  the  ship 
and  goods  taken,  unless  the  owner  makes  fresh  pursuit  ante  own- 
sum  solis.  7  E.  IV.  14.  Vavisour1  said  that  it  was  adjudged  in 
the  time  of  that  same  king,  "q  tot  <j  pi-ist  tiel  ■meason-  des  enemies 
quel  avoit  prise  devant  dun  Englishc,  que  il  averoit  ceo  come  chose 
gaigrie  en  bedel,  &c,  ct  nc/my  le  roij,  nc  V  admiral,  ne  le  partic  a  qui 
le  property  fuit  devant,  &c. ;  pur  ceo  q  le  partic  nc  vient  freshment, 
mesme  le  jour  q  il  fuit  prise  de  luy,  et  ante  occasivm  solis,  et  claime 
ceo."  And  this  determination  has  never  been  shaken  by  any  com- 
mon-law resolution  ;  it  has  rather  been  confirmed  and  recognized. 

And  the  determinations  of  the  admiralty  courts  will  not  affect  this 
case,  for  they  have  determined  either  upon  particular  acts  of  Parlia- 
ment, or  upon  the  principles  of  other  laws  than  the  common  law. 

But  this  court  will  follow  the  determination  of  the  common  law. 
And.  the  three  acts  of  Parliament  made  in  the  present  reign 
(which  are  all  upon  this  head)  are  built  upon  the  same  principle. 
The  saving-clause  in  29  G.  II.  c.  34;3  supposes  the  right  of  the 
owner  to  be  extinguished  and  gone,  and  that  the  captor  had  a 
right  to  the  thing  taken  ;  otherwise,  the  Parliament  had  no  right 
to  impose  upon  the  original  owners  such  terms  of  payment  for 
salvage.  The  act  itself  even  calls  them  the  former  owners ;  and  it 
is  the  bounty  of  the  act  to  restore  to  them  any  part  at  all. 

No  mischief  can  arise  from  this  construction :  many  inconven- 
iences will  flow  from  a  contrary  one.  And  courts  of  law  will  put 
liberal  constructions  upon  policies  of  insurance. 

This  principle  was  recognized  by  Ld.  Ch.  J.  Lee,  in  the  case 
reported  in  2  Strange,  1250,  Denn  v.  Dicker,  where  the  being  car- 
ried into  the  enemy's  port  and  detained  eight  days  was  esteemed  a 
total  loss  of  the  voyage,  and  the  property  of  the  owners  gone. 

This  is  a  question  only  between  the  insurer  and  the  insured  ; 
and  the  insurer  had  undertaken  against  all  sorts  of  perils  for  a 
premium  received.  And  here  the  voyage  was  totally  lost,  and  the 
cargo  entirely  perished.  So  that  there  can  be  no  doubt  as  to  the 
real  justice  of  this  case. 

1  Vavisour  was  not  tlieu  a  judge,  nor  Abr.  of  the  case,  Finch  Tit.  Barr.  pi.  90,  it 
even  a  serjeant.  is  nieff. 

2  This  is  so  in  the  last  edition  of  the  3  s.  '24. 
Year  Books,  but  is  a  misprint,  and  in  the 


ABANDONMENT. 


No.  1.  —  Goss  v.  Withers. 


Second  point,  —  The  insured  had  a  right  to  abandon  the  ship  to 
the  insurers  after  her  coining  into  Milford  Haven.  For  the  prop- 
erty insured  was  irrecoverably  destroyed.  And  here  was  immediate 
notice  given  to  the  insurers  of  the  abandoning  of  it  to  them. 

Molloy,  Lib.  2,  c.  7,  p.  278,  and  Maline's  Lex  Mercatoria,  111, 
lay  down  the  rules  of  abandoning.  Maline's  Lex  Mercatoria,  115, 
puts  it  "  where  there  is  no  probability  of  putting  to  sea  with  the 
thing  insured." 

Now,  here  the  ship  was  freighted  with  a  perishable  commodity 
(fish  from  Newfoundland)  bound  to  hot  countries  (Portugal  or 
Spain) ;  was  taken,  and  afterwards  re-taken,  and  brought  into  Mil- 
ford  Hayen,  without  sufficient  hands  of  her  own,  and  requiring  so 
much  refitment  as  was  impossible  to  be  finished  before  the  cargo 
would  and  must  be  spoiled  ;  and  part  of  the  cargo  was  thrown 
overboard,  too.  To  what  purpose  then  should  the  insured  be  at  the 
expense  of  refitting  the  ship  to  carry  a  spoiled  and  useless  cargo. 

Little  is  to  be  found  in  our  books  about  abandoning.  The  .rule 
laid  down  was,  "  that  the  insured  has  a  right  to  abandon  to  the 
insurers  where  there  are  no  hopes  of  saving  the  perishable  cargo ; 
provided  there  be  no  fraud." 

This  ship  was  in  port,  the  hands  all  in  France,  in  prison.  Besides, 
here  was  a  total  loss,  for  the  costs  of  salvage  exceeded  the  value  of 
the  thing  saved.     Therefore  they  had  a  right  to  abandon. 

Sir  Richard  Lloyd  and  Mr.  Serjeant  Davey,  on  behalf  of  the 
defendant,  argued  upon  the  same  two  points,  but  made  very  differ- 
ent deductions. 

First.  —  The  insurers  could  not  be  liable  as  for  a  total  loss  (though 
they  agreed  it  was  an  average  loss). 

The  capture  of  the  ship  was  not  a  total  loss  ;  the  property  was 
not  divested  out  of  the  owners.  A  mere  capture,  without  being 
carried  infra  prcesidia,  or  some  other  such  circumstance,  will  not 
alter  the  property.  The  taking  out  the  mariners  and  putting  in 
the  enemy's  crew,  is  not  enough  to  do  it.  Nor  is  the  detaining  it 
eight  days,  for  it  has  been  holden  that  nine  days  will  not  alter  the 
property.  In  Lucas's  Rep.  77,  Assievedo  v.  Cambridge,  the  court 
held   this  to   be  very   plain,1   "  that   the  property  was  not  there 

1  They  did  so.     But  there  is  no  deter-  said,  "  that  Lucas's  report  of  that  ease  (of 

mi  nation  of  the  ease  itself  in  Lucas;  lie  which  he  himself  had  a  note)  was  a  psetty 

reports   it   to   be   adjourned    for    further  good  one."] 
argument.     [N.  B. —  Mr.   Justice    Foster 


SECT.   I. WHERE    COMPETENT. 


No.  1.  — Goss  v.  Withers. 


altered  by  the  taking."  Yet  in  that  case  there  was  nine  clays'  pos- 
session by  the  enemy.  And  Dr.  Henchman,  in  arguing  for  the 
defendant,  said  that  the  question  would  not  have  borne  a  dispute 
in  the  Admiralty  Court ;  for  that  the  law  is  clear  "  that  not  length 
of  time,  but  the  bringing  infra  prcesidia,  is  that  which  divests  the 
property."  And  he  even  cited  a  case  of  four  years'  possession  not 
altering  the  property  ;  and  also  a  great  many  other  authorities,  to 
prove  "  that  the  property  is  not  divested  without  bringing  the  ship 
infra  prcesidia"  Bynkershoek's  Qmestiones  Juris  Publici,  lib.  1, 
c.  4,  is  contrary  to  Grotius's  opinion,  and  says,  "that  length  of  time 
alone  is  not  sufficient  to  divest  the  property."  Therefore  this  was 
only  an  average  loss ;  not  a  total  loss,  or  a  divesting  of  property  ; 
and  if  so,  the  insurer  cannot  be  entitled  to  recover. 

The  statute  of  29  G.  II.  c.  34,  §  24,  directs  the  ships  taken  and 
retaken  to  be  restored  to  the  owners  on  paying  salvage. 

This  was  an  insurance  with  benefit  of  salvage  ;  so  that  the  voy- 
age was  not  insured,  but  only  the  ship  and  cargo. 

The  distinction  is  between  such  insurances  as  this  (with  benefit 
of  salvage)  and  insurances  interest  or  no  interest.  In  the  former 
case  no  prevention  of  the  voyage  can  make  the  insurers  liable. 

There  are  three  cases  on  this  head  :  — 

Pond  v.  King,  H.  21  G.  II.,  B.  E.  Where  the  interruption  and 
loss  of  the  voyage  was  holden  to  be  the  thing  insured  against  by 
that  policy  ;  which  was  without  benefit  of  salvage,  and  interest  or 
no  interest,  and  free  of  average  ;  and  this  was  holden  not  to  be  an 
average  loss,  but  a  total  loss,  within  the  terms  and  extent  of  that 
policy. 

Be  Paiba  v.  Ludlow,  Tr.  5  G.  I.,  C.  B.,  reported  in  Comyns,  360. 
An  assumpsit  upon  a  policy  whereby  the  defendant  insured  the 
plaintiff,  interest  or  no  interest,  and  merely  a  wager-policy  ;  and 
the  ship  was  taken  by  a  pirate,  detained  nine  days,  and  then 
retaken.  This  was  determined  for  the  plaintiff,  because  had  received 
a  damage  by  the  interruption  of  the  voyage. 

Fitzgerald  v.  Pole,  P.  23  G.  II.  Where  the  plaintiff's  interest  was 
by  the  policy  settled  at  £1,000  ;  and  there  was  benefit  of  salvage 
The  crew  mutinied  ;  whereby  the  cruise  was  totally  interrupted 
and  lost.  It  was  holden  not  to  be  a  total  loss,  though  the  voyage 
was  obstructed  by  a  mutiny. 

Here  neither  the  obstruction  of  the  voyage  nor  tin-  loss  of  the 
mariners  makes  it  a  total  loss;  and  if  not,  the  insurer  is  not 
liable. 


ABANDONMENT. 


No.  1. — Goss  v.  Withers. 


Many  things  may  be  thrown  out  of  the  case  as  to  the  first  point, 
the  loss  of  the  ship,  viz.,  the  cargo  being  fish  ;  the  tempest ;  the 
saving  part  of  the  cargo. 

They  denied  the  principle  laid  down  by  their  opponents  as  the 
rule  of  the  common  law  to  have  been  ever  determined ;  on  the 
contrary,  there  has  been  a  vast  variety  of  opinions  about  it.  Nor 
indeed  can  any  determination  be  made  on  the  principles  of  our 
municipal  laws ;  for  the  question  concerns  foreigners  as  well  as 
natives ;  and  is  a  question  of  general  law,  not  of  any  particular 
and  local  law. 

The  acts  of  Parliament  that  have  been  mentioned  are  not  built 
upon  the  principle  that  has  been  assigned  ( Vide  p.  5,  ante) ;  but 
upon  right  reason,  justice,  and  equity.  "Whether  this  was  a  total 
loss  or  not "  must  be  determined  by  the  laws  of  war,  and  by  the 
law  of  nature,  —  that  is,  of  right  reason. 

The  captor  has  for  a  time  only  the  possessory  right,  not  the  ab- 
solute right.  The  right  to  take  is  not  the  personal  right  of  the 
taker,  but  the  right  of  the  subject  of  that  nation  of  which  he  is  a 
subject.  So  the  right  of  retaking  is  not  personal  to  the  retaker, 
but  national,  —  to  any  subject  of  the  retaker's  nation.  At  first 
each  is  only  possessory ;  neither  taking  nor  retaking  give  an  abso- 
lute property. 

The  fresh  pursuit  must  depend  upon  circumstances;  it  cannot 
be  confined  to  any  limited  exact  time  (as  ante  occasum  solis). 
Burlamaqui's  Principles  of  Natural  Law,  lib.  1,  c.  6;  lib.  2,  c.  7. 
A  fresh  pursuit,  carried  on  as  soon  as  may  be,  will  prevent  the 
mere  possessory  property  from  becoming  an  absolute  property. 
Our  ships  of  war  and  privateers  are  in  a  constant  state  of  pursuit ; 
they  cruise  in  order  to  retake,  as  well  as  to  take. 

Indeed  there  must  be  a  fixed  limit  of  the  time  of  this  possessory 
property  becoming  absolute  ;  and  this  limit  is  when  the  right  owner 
may  be  said  to  give  up  his  claim,  —  his  spes  recuperandi.  It  is 
agreed  that  carrying  infra  prcesidia  merely  will  not  be  a  sufficient 
limit;  neither  can  the  mere  effluxion  of  time.  This  fixed  limit  has 
never  been  precisely  settled  by  writers ;  therefore  the  spes  recuper- 
andi is  and  must  be  the  criterion. 

The  question  indeed  will  not  be  so  easily  settled,  "  when  this 
spes  recuperandi  is  gone  and  when  it  subsists."  But  in  our  seas, 
where  our  ships  are  in  a  constant  state  of  pursuit,  this  hope  of 
recovery  can  never  be  said  to  be  gone  so  soon  as  within  eight  days, 


SECT.   I. WHERE    COMPETENT. 


No.  1.  —  Goss  v.  Withers. 


—  especially  when,  in  fact  and  reality,  this  ship  was  actually 
retaken  at  the  end  of  eight  days. 

The  court  or  a  jury  are  the  proper  judges  of  this  probability  or 
reasonable  hope  of  recovery.  Till  that  is  gone  the  absolute  prop- 
erty is  not  vested  in  the  captor. 

The  acts  of  Parliament  do  not  mean  to  consider  the  point  of 
property. 

Second  point:  —  The  circumstances  stated  do  not  entitle  the 
insured  to  abandon  the  ship  to  the  insurers.  This  right  to  aban- 
don supposes  a  total  loss.      This  was  only  an  average  loss. 

They  disputed  the  position,  "  that  the  insured  are  to  be  favored." 
The  words  of  the  policy  are  calculated  to  prevent  their  abandoning. 
This  doctrine  of  abandoning  is  a  very  inconvenient  one  to  insurers. 

As  to  Molloy  and  Malines,  —  almost  anything  may  be  proved 
by  citations  from  them.1 

The  underwriter  can  never  be  supposed  to  insure  against  these 
accidental  perils  in  distant  ports,  but  only  against  the  general 
perils  of  the  existence  of  the  cargo ;  the  insurance  is  not  upon  the 
beneficial  sale  of  the  goods,  upon  the  sanity  of  them,  but  only 
upon  the  safety  of  them. 

There  are  several  cases  where  the  ship  was  totally  lost,  and  there 
was  an  end  of  all  claim  and  right. 

As  to  insurances  upon  a  cruise,  all  those  cases  are  cut  up  by  the 
roots  by  the  case  of  Fitzgerald  v.  Pole,  which  "determined  that  the 
object  of  insurance  is  the  body  of  the  ship,  not  the  cruise." 

Bynkershoek's  opinion  is,  "  that  there  neither  is  nor  can  be  any 
general  rule  laid  down  for  a  limit ;  but  every  case  must  depend 
upon  its  own  circumstances." 

[Lord  Mansfield.  He  does  say  so.  And  he  combats  the  opinion 
<>f  Grotius  (supported  by  many  other  writers)  "  that  twenty -four 
hours'  cpuiet  possession  is  the  fixed  rule.] 

There  is  a  common-law  case  in  March,  110,  pi.  188,  "that  the 
property  is  not  altered  unless  the  ship  be  brought  infra  prcesidia 
of  the  enemy." 

The  counsel  for  the  plaintiff  in  reply :  — 

As  to  the  cases  that  have  been  cited,  — 

First.    The  only  case  which  may  seem    against  us  is  the  case 

1  Lord  Mansfield  spoke  extremely  well  recommended  especially  as  well  worth 
of  Bynkershoeck's  writings  (who  was  later  reading  his  book  of  Prizes  (Questiones 
than  all  the  rest,  except   Cocceius);  and     Publici  Juris). 


10  ABANDONMENT. 


No    1.  —  Goss  v.  Withers. 


abridged  by  Viner  in  vol.  16,  pp.  405,  406,  tit.  Policy  of  Insurance, 
letter  A,  pi.  13,  Assievedo  v.  Cambridge,  reported  in  Lucas  77 
(called  10  Mod.),  "that  being  nine  days  in  possession  of  the 
enemy  (without  being  carried  infra  prcesidia)  does  not  alter 
the  property."  But  there  was  no  determination  upon  that  case. 
Besides,  that  was  upon  a  policy  interest  or  no  interest ;  and  the 
voyage  was  the  thing  there  insured. 

The  three  cases  of  Pond  v.  King,  Be  Paiba  v.  Ludlow,  and  Fitz- 
gerald v.  Pole  are  no  proofs  of  their  point. 

Pond  v.  King  was  interest  or  no  interest.  And  the  court  gave 
no  opinion  about  the  property  ;  they  founded  their  judgment  on 
the  cruise  being  insured. 

De  Paiba  v.  Ludlow  was  an  average  loss.  There  was  no  de- 
termination upon  the  property  ;  for  there  also  the  voyage  was 
interrupted. 

Fitzgerald  v.  Pole  was  also  an  insurance  of  a  four-months  cruise. 
So  that  too  was  upon  the  voyage.1 

The  totality  of  capture  depends  upon  the  spes  recuperandi,  and 
here  was  none.  The  average  loss  here  stipulated  for  is  where  the 
voyage  is  performed  without  interruption. 

They  do  not  dispute  our  principle  "of  the  spes  recuperandi  being 
the  true  criterion."  But  they  say,  "  Our  ships  are  in  constant  pur- 
suit in  seas  frequented  by  our  men-of-war  and  privateers." 

Now  it  is  hard  to  conceive  a  pursuit  without  an  object,  or  even 
a  knowledge  of  any  particular  ship's  being  taken.  "  Fresh  pursuit  " 
means  the  going  in  quest  of  that  particular  individual  ship  which 
is  taken. 

This  rule  would  carry  it  much  too  far,  and  proves  too  much  ;  for 
if  eight  days  be  not  sufficient,  it  might  be  carried  to  eight  or  ten 
months,  or  to  any  indefinite  time,  so  that  there  would  be  no  limit 
at  all  left.  This  is  a  question  that  our  courts  must  determine 
according  to  our  laws.  We  only  contend  for  the  time  of  a  reason- 
able hope  of  recovery,  not  for  a  wanton  or  groundless  hope.  Now 
no  such  reasonable  hope  can  remain  after  the  ship's  continuing 
eight  days  in  possession  of  the  enemy. 

Grotius,  in  lib.  3,  c.  6,  p.  285,  says:  "  Sed  recentiori  jure  gen- 
tium inter  Europaeos  populos  introductum  videmus,  ut  talia  capta 

i  \  r> — This  judgment  was  for  the  King;  hut  the  House  of  Lords  reversed 
plaintiff  in  B.  E.,  who  supposed  this  to  be  the  judgment,  because  they  thought  it  dis- 
the  same  point  with  the  case  of  Pond  v.    tinguishable  from  Pond  v.  King. 


SHOT.    I.  —  WHERE    COMPETENT.  11 

No.  1 .  —  Goss  v.  Withers. 

censeantur,  ubi  per  boras  viginti  quatuor  in  potestate  hostium 
fuerint." 

Secondly.  It  has  been  urged  "  that  tbe  insured  can  in  no  case 
abandon."  On  the  contrary,  all  provincial  laws  allow  the  power 
of  abandoning  in  some  cases.1 

This  case  falls  within  the  reason  of  the  cases  that  have  been 
alreadv  cited  ;  and  the  inconveniences  that  have  been  suggested 
are  altogether  imaginary. 

Lord  Mansfield  observed,  in  general,  that  a  large  field  of  argu- 
ment  had  been  entered  into,  and  that  it  would  be  necessary  to 
consider  the  law  of  nations,  our  own  laws  and  acts  of  Parliament, 
and  also  the  law  and  custom  of  merchants  (which  make  a  part  of 
our  laws).  Cur.  adiris. 

On  Thursday,  23d  of  November,  1758,  his  Lordship  delivered  the 
resolution  of  the  Court,  after  having  first  stated  the  case  and  ques- 
tions very  particularly. 

Lord  Mansfield.  It  is  not  necessary  to  confine  what  shall  be 
said  to  the  two  distinct  questions  that  are  stated. 

The  general  question  is,  Whether  the  plaintiffs  were,  on  the  18th 
of  January,  1757,  entitled  to  recover  against  the  insurers  as  upon 
a  total  loss,  under  an  offer  "  to  abandon  the  ship  and  cargo  to  the 
insurers,  for  them  to  make  what  advantage  of  salvage  they  could." 
(For  an  offer  "  to  abandon  "  was  then  made,  and  nothing  has  hap- 
pened since  that  time  to  alter  the  case.) 

There  is  one  point  which,  we  are  all  of  opinion,  is  immaterial  as 
between  the  insurers  and  the  insured;  viz.,  "Whether  by  this  cap- 
ture the  property  was  or  was  not  transferred  to  the  enemy  by  the 
law  of  nations."  That  question  can  happen  but  in  two  cases  ; 
namely,  (1st)  Between  the  owner  and  a  neutral  person  who  has 
bought  the  capture  from  the  enemy  ;  (2d)  Between  the  owner  and 
recaptor. 

If  the  ship  taken  by  an  enemy  escapes  from  the  enemy  or  is 
retaken,  or  if  the  owner  redeems  (ransoms)  the  capture,  his  prop- 
erty is  thereby  revested  ;  which  property  in  the  ship  taken  was,  by 
the  law  of  nations,  obtained  by  the  captor. 

The  general  proposition  of  writers  upon  this  subject  is,  that 
quae  ab  hostibus  capiuntur,  statim  capientium  fiunt,  — which  is  to 

1  Lord  Mansfield.  It  goes  so  far  hack  as  the  Rhodian  law  and  the  laws  of 
Olerou. 


12      "  ABANDONMENT. 


No.  1. — Gosa  v.  Withers. 


be  understood  "  when  the  battle  is  over."  Indeed  nothing  can  be 
said  to  be  taken  till  the  battle  is  over ;  and  the  battle  is  not  over 
till  all  immediate  pursuit  has  ceased  and  all  hope  of  recovery  is 
gone.  This  is  the  definition  of  a  capture,  referred  to  by  our  Prize- 
Act,  29  G.  II.  c.  34,  of  a  ship  taken  by  the  enemy.  And  accordingly 
Voet,  in  his  Commentary  upon  the  Pandects,  lib.  49,  tit.  15,  vol.  2, 
1155,  and  many  authors  he  refers  to,  maintain  with  great  strength, 
per  solani  occupationem  dominium  prcedce  hostibus  acquiri. 

One  argument  used  to  prove  it  is:  "That  the  instant  the  captor 
has  got  possession,  no  friend,  no  fellow-soldier,  or  ally,  can  take  it 
from  him ;  because  it  would  be  a  violation  of  his  property." 

But  other  writers  and  states  have  drawn  other  lines  by  arbitrary 
rules,  and  partly  from  policy  to  prevent  too  easy  dispositions  to 
neutrals,  and  partly  from  equity  to  extend  the  jus  postliminii  in 
favour  of  the  owner.  No  wonder  there  is  so  great  incertainty  and 
variety  of  notions  amongst  them  1  about  fixing  a  positive  boundary 
by  the  mere  force  of  reason  where  the  subject-matter  is  arbitrary, 
and  not  the  object  of  reason  alone.2 

Some  have  said  from  the  Roman  law  (which  was  introduced  in 
favour  of  the  liberty  and  condition  of  a  Roman  citizen  taken  cap- 
tive), "  that  the  prize  must  be  brought  infra  pncsidia."  But  "  what 
custody  at  sea  should  be  equal  to  prcesidia  at  land,"  is  a  new  fund 
of  dispute,  and  leaves  the  matter  just  where  it  was. 

The  writers  whom  Grotius  follows,  and  many  more  who  follow 
him,  and  some  3  nations,  have  made  twenty-four  hours'  quiet  pos- 
session by  the  enemy  the  criterion.  But  this,4  Bynkershoek  and 
other  writers  whom  he  follows  and  several  nations  absolutely 
deny.  Some  have  said  that  the  ship  must  be  carried  into  the 
enemy's  port,  condemned  there,  sail  out  again,  and  arrive  in  a 
friend's  port.  All  these  circumstances  are  very  arbitrary,  and 
therefore  this  is  generally  exploded. 

I  have  taken  the  trouble  to  inform  myself  of  the  practice  of  the 
Court  of  Admiralty  in  England  before  any  act  of  Parliament  com- 

1  All  the  opinions  agreed  with  respect  should  be  the  particular  time  sufficient  to 

to  the  capture  of  ships  that  the  property  vest  the  property. 

did  not  vest  till  the  ship  taken  was  brought         2  Possession    is   sufficient    against    all 

intra  prcesidia,  as  it  seems  on  the  authority  persons,  except  him  who  hath  right;  and 

cited  in  10  Mod.  79,  80.    But  if  there  were  in  this  case  no  person  hath  a  right,  for  the 

others  who  held  the  length  of  time  mate-  original  owner,  being  an  enemy,  is  not  to 

rial,  yet  there  was  no  third  opinion  ;  but  lie  considered  as  having  any  right, 
the  variety  of  opinions  only    were  either  3    Vide  the  Ordinances  of  Louis  XIV. 

what  should  be  called  presidium,  or  what  4  Quaest.  Jur.  Publ.  L.  1,  c.  4 


SECT.  I. — WHERE    COMPETENT.  13 

No.  1.  —  Goss  v.  Withers. 

manded  restitution  or  fixed  the  rate  of  salvage,  and  I  have  talked 
with  Sir  George  Lee,  who  has  examined  the  books  of  the  Court 
of  Admiralty,  and  informs  me  that  they  held  the  property  not 
changed  so  as  to  bar  the  owner  in  favour  of  the  vendee  or  recap- 
tor  till  there  had  been  a  sentence,  of  condemnation  ;  and  that  in 
the  reign  of  King  Charles  II.  Sir  Richard  Floyd  (father  of  the  late 
Sir  Nathaniel)  gave  a  solemn  judgment  upon  the  point,  and  decreed 
restitution  of  a  ship  retaken  by  a  privateer  after  she  had  been  four- 
teen weeks  in  the  enemy's  possession,  because  she  had  not  been 
condemned.  Another  case  upon  the  same  principle  against  a  ven- 
dee is  cited  at  the  end  of  Assievedo  v.  Cambridge,  in  1695  (Lucas, 
79),  after  a  long  possession,  two  sales,  and  several  voyages.1 

But  whatever  rule  ought  to  be  followed  in  favour  of  the  owner 
against  a  recaptor  or  vendee,  it  can  no  way  affect  the  case  of  an 
insurance  between  the  insurer  and  insured.  (Upon  an  action 
against  the  hundred  for  a  robbery  a  question  might  as  well  be 
started,  "  Whether  the  property  of  the  goods  as  against  the  owner 
was  changed  by  the  sale.") 

The  ship  is  lost  by  the  capture,  though  she  be  never  condemned  at 
all,  nor  carried  into  any  port  or  fleet  of  the  enemy,  and  the  insurer 
must  pay  the  value.  If  after  condemnation  the  owner  recovers  or 
retakes  her,  the  insurer  can  be  in  no  other  condition  than  if  she 
had  been  recovered  or  retaken  before  condemnation.  The  reason 
is  plain  from  the  nature  of  the  contract.  The  insurer  runs  the  risk 
of  the  insured  and  undertakes  to  indemnify;  he  must  therefore 
bear  the  loss  actually  sustained,  and  can  be  liable  to  no  more. 
So  that  if  after  condemnation  the  owner  recovers  the  ship  in  her 
complete  condition,  but  has  paid  salvage,  or  been  at  any  expense 
in  getting  her  back,  the  insurer  must  bear  the  loss  so  actually 
sustained. 

1  In   that   case  it   is  expressly  stated  ment  in  the  like  cases  are  very  remark- 

(p.  77)  that  before  the   ship  was  carried  able;  in  pro?senti  pertinere  is  part  of  the 

intra  prcesidw  it  was  retaken  by  an  Eng-  sentence,  so  that   the   sentence   does   not 

lish  man-of-war  ,  and  it  appears  that  the  give  a  new  right,  but  confirms  an  old  one. 

case  was  argued  entirely  on  that  ground  Lad.  Molin,  118.     Bello  res  per  vim  usur- 

for  the  defendant,  and  particularly  in  page  pantur  quando  ad  locum  totum,  &c. 
79   (the  page  here  referred  to),   as   may  Petrinus  Bellus,  part  3,  no    11.     Fieri 

appear  from  the  following  extracts  from  potest,   that   property  may  be   altered   by 

that  page,  viz.  :  "The  law  is  clear  that  not  possession  of  a  shorter  time,  et  forsan  not 

the  length  of  time,  but  the  bringing  intra  altered  dntturnwre  possessions 
prcesidiu  into  a  place   of   safety   is   that  Consulat.  del  Mare,  cap.  287,  lays  down 

which  divests  the  property  ;  "  and  for  that  the  security  of  the  place  into  which  dedu- 

the  case  of  and  Sands,  in  the   late  cuntur   capta    as    that   which   causes   the 

war,  was  cited.     The  words  of  the  judg-  alteration  of  property. 


14  ABANDONMENT. 


No.  1.  —  Goss  v.  Withers. 


A  capture  by  a  pirate  (and  in  Spain,  Venice,  and  England,  the 
goods  go  to  the  captor  of  the  pirate  against  the  owner,  as  there  can 
be  no  condemnation  to  entitle  the  pirate),  or  a  capture  under  a  com- 
mission where  there  is  no  war,  do  not  change  the  property  ;  yet, 
as  between  the  insurer  and  insured,  they  are  just  upon  the  same 
foot  as  captures  by  the  enemy. 

This  point  never  would  have  been  started  in  policies  upon  real 
interest,  because  it  never  could  have  varied  the  case  (and  in  this 
cause  the  question  could  not  have  been  material,  if  the  parties  had 
not  suffered  the  cargo  to  perish  while  they  squabbled  who  should 
take  it).  But  wager-policies  gave  rise  to  it ;  it  was  necessary  to  set 
up  a  total  loss  as  between  third  persons  for  the  .purpose  of  their 
wager,  though  in  fact  the  ship  was  safe,  and  restored  to  the 
owner. 

In  the  case  of  Assievedo  v.  Cambridge,  the  man-of-war  which 
retook  the  ship  brought  her  into  the  port  of  London,  and  restored 
her  to  the  owner  upon  reasonable  redemption  (that  appears  from 
the  special  verdict,  though  not  stated  in  Lucas).  And  then  the 
owner,  not  abandoning  the  ship,  could  only  have  come  upon  the 
insurers  for  the  redemption,  and  no  question  could  have  arisen 
upon  the  change  of  property.  But  the  policy  being  interest  or  no 
interest,  without  benefit  of  salvage,  the  question  arose  upon  the 
terms  and  meaning  of  the  wager.     That  case  was  not  determined. 

In  the  case  of  Spencer  v.  Franco,  before  Lord  Hardwicke,  at 
Guildhall,  173".,  the  South  Sea  ship  Prince  Frederick  had  re- 
turned safe  to  the  port  of  London  with  her  cargo  :■  the  wagerers 
contended  "  she  was  totally  lost  at  La  Vera  Cruz,"  from  this  notion 
of  a  change  of  property  ;  but  failed. 

De  Paiba  v.  Ludlow  was  also  a  wager-policy  ,  and  the  property 
could  not  be  changed,  because  there  was  then  no  war,  nor  even  a 
declaration  of  war ;  but  the  court  held  "  that  as  the  ship  was  once 
taken  in  fact,  the  event  had  happened,  though  she  was  afterwards 
recovered.'"  So  in  the  case  of  Pond  v.  King,  which  was  also  a 
wager-policy. 

But  in  the  case  of  Pole  v.  Fitzgerald  the  majority  of  the  judges 
and  the  House  of  Lords  (in  1754,  by  the  name  of  Fitzgerald  v. 
Pole)  held  "  that  though  the  ship  might  be  deemed  for  a  time  as 
lost ;  yet,  as  she  was  afterwards  recovered,  the  event  of  a  total  loss 
had  not  finally  happened  according  to  the  construction  of  the 
wager." 


SECT.  I. — WHERE   COMPETENT.  15 

No.  1.  —  Goss  v.  Withers. 

These  are  all  the  cases  where  this  question  has  been  debated. 
But  this  is  a  policy  upon  real  interest. 

The  single  question  therefore  upon  which  this  case  turns  is, 
•'  Whether  the  insured  had,  under  all  the  circumstances,  upon  the 
18th  of  January,  1757,  an  election  to  abandon." 

The  loss  and  disability  was  in  its  nature  total,  at  the  time  it 
happened.  During  eight  days  the  plaintiff  was  certainly  entitled 
to  be  paid  by  the  insurer  as  for  a  total  loss;  and  in  the  case  of  a 
recapture  the  insurer  would  have  stood  in  his  place.  The  subse- 
quent recapture  is,  at  best,  a  saving  only  of  a  small  part ;  half  the 
value  must  be  paid  for  salvage.  The  disability  to  the  voyage  still 
continued.  The  master  and  mariners  were  prisoners.  The  charter- 
party  was  dissolved.  The  freight  (except  in  proportion  to  the 
goods  saved)  was  lost.  The  ship  was  necessarily  brought  into  an 
English  port.  What  could  be  saved  might  not  be  worth  the 
expense  attending  it :  (which  is  proved  by  the  plaintiff's  offer  to 
abandon). 

The  subsequent  title  to  restitution  arising  from  the  recapture, 
at  a  great  expense,  of  the  ship  disabled  to  pursue  her  voyage,  can- 
not take  away  a  right  vested  in  the  insured  at  the  time  of  the 
capture.  But  because  he  cannot  recover  more  than  he  has  suffered, 
he  must  abandon  what  may  be  saved. 

The  better  opinion  of  the  books :  "  Sufficit  semel  extitisse  condi- 
tionem,  ad  beneficium  assecurati,  de  amissione  navis  ;  etiam  quod 
postea  sequeretur  recuperatio ;  nam  per  talem  recuperationem 
non  poterit  prsejudicari  assecurato."  I  cannot  find  a  single  book, 
ancient  or  modern,  which  does  not  say  "  that  in  case  of  the  ship 
being  taken,  the  insured  may  demand  as  for  a  total  loss,  and  aban- 
don." And  what  proves  the  proposition  most  strongly  is,  that,  by 
the  general  law,  he  may  abandon  in  the  case  merely  of  an  arrest,  or 
an  embargo,  by  a  prince  not  an  enemy.  Positive  regulations  in 
different  countries  have  fixed  a  precise  time  before  the  insured 
should  be  at  liberty  to  abandon  in  that  case.  The  fixing  a  precise 
time  proves  the  general  principle. 

Every  argument  holds  stronger  in  the  case  of  the  other  policy 
with  regard  to  the  goods.  The  cargo  was  in  its  nature  perishable, 
destined  from  Newfoundland  to  Spain  or  Portugal,  and  the  voyage 
as  absolutely  defeated  as  if  the  ship  had  been  wrecked,  and  a  third 
or  fourth  of  the  goods  saved. 

No  capture  by  the  enemy,  though  condemned,  can  be  so  total  a 


16  ABANDONMENT. 


No.  1.  —  Goss  v.  Withers. 


loss  as  to  leave  no  possibility  of  a  recovery.  If  the  owner  himself 
should  retake  at  any  time,  he  will  be  entitled;  and  by  the  act  of 
Parliament,  if  an  English  ship  retakes  at  any  time  (before  condem- 
nation or  after),  the  owner  is  entitled  to  restitution  upon  stated 
salvage.  This  chance  does  not  suspend  the  demand  for  a  total  loss 
upon  the  insurer;  but  justice  is  done  by  putting  him  in  the  place 
of  the  insured,  in  case  of  a  recapture. 

In  questions  upon  policies,  the  nature  of  the  contract,  as  an 
indemnity  and  nothing  else,  is  always  liberally  considered.  There 
might  be  circumstances  under  which  a  capture  would  be  but  a 
small  temporary  hindrance  to  the  voyage,  perhaps  none  at  all,  — 
as  if  a  ship  was  taken,  and  in  a  day  or  two  escaped  entire  and  pur- 
sued her  voyage.  There  are  circumstances  under  which  it  would 
be  deemed  an  average  loss ;  if  a  ship  taken  is  immediately  ran- 
somed by  the  master  and  pursues  her  voyage,  there  the  money  paid 
is  an  average  loss.  And  in  all  cases  the  insured  may  choose  "  not 
to  abandon." 

In  the  second  part  of  the  "Usage  and  Customs  of  the  Sea"  (a 
French  book  translated  into  English),  a  treatise  is  inserted  called 
a  "  Guidon,"  where,1  after  mentioning  the  right  to  abandon  upon  a 
capture,  he  adds,  "  or  any  other  such  disturbance  as  defeats  the 
voyage,  or  makes  it  not  worth  while,  or  worth  the  freight,  to 
pursue  it." 

I  know  that  in  late  times  the  privilege  of  abandoning  has  been 
restrained  for  fear  of  letting  in  frauds ;  and  the  merchant  cannot 
elect  to  turn  what,  at  the  time  when  it  happened,  was  in  its  nature 
but  an  average  loss,  into  a  total  one  by  abandoning.  But  there  is 
no  danger  of  fraud  in  the  present  case.  The  loss  was  total  at  the 
time  it  happened.  It  continued  total  as  to  the  destruction  of  the 
voyage.  A  recovery  of  anything  could  be  had  only  upon  paying 
more  than  half  the  value  (including  the  costs).  What  could  be 
saved  of  the  goods  might  not  be  worth  the  freight  for  so  much  of 
the  voyage  as  they  had  gone  when  they  were  taken.  The  cargo 
from  its  nature  must  have  been  sold  where  it  was  brought  in.  The 
loss  as  to  the  ship  could  not  be  estimated,  nor  the  salvage  of  half 
be  fixed  by  a  better  measure  than  a  sale.  In  such  a  case  there  is 
no  color  to  say  that  the  insured  might  not  disentangle  himself 
from  unprofitable  trouble  and  further  expense,  and  leave  the 
insurer  to  save  what  he  could.     It  might  as  reasonably  be  argued 

1  G .7,  §  l 


SECT.   I.  —  WHERE    COMPETENT.  17 

No.  1.  —  Goss  v.  Withers.  —  Notes. 

that  if  a  ship  sunk  was  weighed  up  again  at  a  great  expense,  the 
crew  having  perished,  the  insured  could  not  abandon,  nor  the 
insurer  be  liable,  because  the  body  of  the  ship  was  saved. 

We  are  therefore  of  opinion  that  the  loss  was  total  by  the  cap- 
ture ;  and  the  right  which  the  owner  had  after  the  voyage  was 
defeated,  "  to  obtain  restitution  of  the  ship  and  cargo,  paying  great 
salvage  to  the  recaptor,"  might  be  abandoned  to  the  insurers,  after 
she  was  brought  into  Milford  Haven. 

Let  the  postea  be  delivered  to  the  plaintiff  in  both  causes. 

ENGLISH  NOTES. 

Insurance  on  ship  "at  and  from  Liverpool  to  the  coast  of  Africa 
during  the  stay  and  trade  there,  and  from  thence  to  ports  of  dis- 
charge, &c.j  in  West  Indies  and  America."  The  perils  insured  against 
included  barratry.  While  the  captain  is  on  shore  in  Africa,  the  crew 
mutiny  and  take  possession  of  the  ship,  with  intent  to  carry  her  to 
Caj^eene.  But  the  boatswain,  to  whom  they  entrust  the  navigation, 
sails  her  to  Barbadoes,  where  she  is  boarded  by  a  King's  ship:  the 
ringleaders  are  seized  and  some  executed.  Government  agent,  having 
taken  charge  of  the  ship,  found  it  necessary  to  sell  cargo  and  stores; 
and  on  his  advice  reaching  the  owners  of  the  ship,  they  abandon. 
Subsequently  the  Government  agent,  after  giving  the  owners  the 
opportunity  of  buying  the  ship,  sells  her.  Decision,  by  Lord  Eldox, 
that  the  assured  were  entitled  to  abandon  and  recover  as  for  a  total  loss. 
Brown  v.  Smith,  H.  L.  appeal  from  Scotland  (1813),  1  Dow,  349. 

When,  upon  intelligence  of  capture  of  ship,  the  assured  have  given 
notice  of  abandonment,  and  the  abandonment  is  accepted  by  the 
underwriters,  the  assured  are  entitled  to  recover  as  on  a  total  loss, 
although  before  action  is  commenced  intelligence  has  arrived  of  a 
recapture  having  actually  occurred  before  the  abandonment.  Acceptance 
may  be  inferred  from  a  statement  by  an  authorized  agent  of  the 
underwriters,  in  regard  to  the  abandonment,  to  the  effect  that  he  is 
satisfied.  Smith  v.  Robertson,  H.  L.  on  appeal  from  Scotland  (1814), 
2  Dow,  474.  Upon  this  case  it  is  to  be  observed  that  there  were 
some  expressions  of  Lord  Eldost  which  suggest  a  doubt  as  to  the 
principle  of  the  decision  of  the  King's  Bench  in  England  in  Bainbridge 
v.  Neilson  (No.  9,  ])ost) ;  namely,  that  the  facts  constituting  a  total  loss 
must  exist  at  the  time  of  the  abandonment.  The  decision  in  Bain- 
bridge v.  Neilson,  however,  confirmed  as  it  is  by  Naylor  v.  Taylor 
(K.  B.  1829),  9  B.  &  C.  718,  and  the  authorities  there  cited,  must 
now  be  considered  as  having  settled  the  principle  so  far  as  relates  to 
English  law. 
vol.  i.  —  2 


IS  ABANDONMENT. 


No.  1.  —  Goss  v.  Withers. — Notes. 


Insurance  on  ship  for  a  voyage.  The  ship,  having  sprung  a  leak, 
was  deserted  by  the  crew  bond  fide  for  preservation  of  their  lives.  She 
was  found  the  following  day,  taken  possession  of  by  another  crew,  and 
towed  into  a  place  of  safety.  Before  news  of  the  latter  circumstance 
reached  the  owners,  they  had  abandoned.  The  salvage  services  and 
repairs  were  such  as  to  equal  or  exceed  the  value.  Held,  that  the  own- 
ers, who  had  abandoned  immediately  on  hearing  of  the  ship  being  a 
derelict,  might  recover  as  for  a  total  loss.  Holdworth  v.  Wise  (K.B. 
1828),  7  B.  &  C,  794;  6  L.  J.,  K.  B.  134.  It  is  to  be  observed  that 
in  the  judgment  delivered  by  Bayley,  J.,  some  reliance  is  placed  on 
the  circumstance  that  the  abandonment  was  made  before  news  arrived 
of  the  ship's  safety.  He  says  (p.  799)  :  "If  at  one  period  of  time  there 
was  a  total  loss  and  an  abandonment  before  news  of  the  vessel's  safety 
had  been  received,  her  subsequent  return  did  not  entitle  the  under- 
writers to  say  that  it  was  no  longer  a  total  loss."  This  is  not  the  law. 
It  is  now  clear  upon  the  authorities  that  if,  at  the  time  of  the  abandon- 
ment, the  circumstances  constituting  a  total  loss  had  been  in  fact  dis- 
placed, although  at  the  time  of  the  abandonment  the  news  of  safety 
had  not  arrived,  the  assured  would  not  be  entitled  (the  abandonment 
not  having  been  accepted)  to  recover  as  on  a  total  loss.  Patterson 
v.  Ritchie  ;  Naylor  v.  Taylor,  sti}>r.  fit.  But  in  Holdsworth  v.  Wise 
the  ship  was  at  no  point  of  time  recoverable  by  the  owners  except  at 
a  cost  exceeding  her  value  ;  ami  the  decision  on  this  ground  is  still 
an  authority. 

Ship  insured  from  Valparaiso  to  Liverpool  was  captured  by  pirates, 
recaptured  by  a  British  war-vessel,  and  brought  back  to  Valparaiso  in 
charge  of  a  prize-master.  On  intelligence  of  these  tacts  reaching  the 
shipowner  together,  he  gave  notice  of  abandonment,  which  the  under- 
writers refused  to  accept.  Under  the  charge  of  the  prize-master  the 
ship  sailed  from  Valparaiso  for  Liverpool  ;  and  meeting  with  bad 
weather  put  into  an  intermediate  port,  where  she  was  unjustifiably 
sold.  Held,  that  the  owners,  never  having  since  the  capture  had  the 
actual  possession,  or  the  means  of  obtaining  it.  were  entitled  to  recover 
as  for  a  total  loss.  Lord  CAMPBELL,  C.  J.,  said,  "  The  cases  referred  to 
I  Holdsioorth  v.  Wise,  1828,  7  B.  &  C.  794  ;  0  L.  J..  K.  B.  1.34  ;  Parry 
v.  Aberdein,  L829,  0  1'..  &  C.  411;  7  L.  J..  K.  15.  260  ;  Mclver  v.  Hen- 
derson, 1810,  4  M.  &  S.  576)  establish  the  principle  that,  if  once  there 
lias  been  a  total  loss  by  capture,  that  is  construed  to  be  a  permanent  loss, 
unless  something  afterwards  occurs  by  which  the  assured  either  has  the 
possession  restored,  or  has  the  means  of  obtaining  such  restoration." 
Dean  v.  Hornby  (Q.  B.  1854),  3  Ell.  &  Bl.  180.  190;  23  L.  J., 
Q.  B.  129. 

As  to  the  inference  of  acceptance  of  abandonment,  see  also  Provincial 


SECT.   I.  — WHERE    COMPETENT.  19 

No.  1.  —  Goss  v.  Withers.  —  Notes. 

Jus.  Co.  of  Canada  v.    Leduc,   P.  C.   on  appeal  from    Canada,    1874, 
L.   R.   6  P.   C.    A].]-.   224;  43   L.  J.,    P.  C.   4!)  (cited  under  No   10, 

post) . 

Silk  goods  of  the  plaintiff's  were  insured  from  Japan  to  London 
under  a  policy  which  included  overland  transit  through  France,  and 
covered  the  risk  (inter  alia)  of  "  restraints  and  detentions  of  kings.  &c." 
The  goods  were  on  their  transit  through  Paris  at  the  time  when  all 
traffic  was  stopped  in  consequence  of  the  blockade  (in  1870)  by  the 
German  armies.  This  state  of  things  continued  until  after  notice  of 
abandonment  had  been  given,  and 'the  action  commenced.  Held,  by 
the  judgment  of  the  Court  of  Common  Pleas,  affirmed  in  the  Exchequer 
Chamber,  that  the  plaintiffs  were  entitled  to  recover  as  on  a  total  loss. 
Bodonachi  v.  Elliot  (1S73,  1874),  L.  R.  8  C.  P.  049  ;  9  C.  P.  518  ;  42 
L.  J.,  C.  P.  247  ;  4:5  L.  J.,  C.  P.  518. 

On  an  insurance  effected  by  the  charterer  of  a  ship,  where  it  was 
-expressly  stipulated  that  the  underwriters  should  pay  a  total  loss  in 
-case  the  ship  should  not  he  allowed  by  the  Russian  Government  to 
load  a  cargo  at  St.  Petersburg  on  the  chartered  voyage,  it  was  held 
that  this  was  a  lawful  and  not  a  wagering  policy,  and  that,  the  event 
having  happened,  the  assured  was  entitled  to  claim  as  on  a  total  loss. 
Puller  v.  Staniforth  (1809),  11  East,  2,32.     10  R.  R.  486. 

AMERICAN   NOTES. 

Where  a  policy  provided  that  no  abandonment  of  the  neutral  property 
should  take  place  in  case  of  capture  or  detention  by  the  British,  until  condem- 
nation and  production  of  the  court  and  sentence  of  condemnation,  nor  in 
«ase  of  capture  or  detention  by  any  other  power,  until  production  of  a  similar 
document  or  satisfactory  reasons  for  its  non-production,  it  was  held  that  the 
right  to  abandon  for  capture  was  restrained  until  after  condemnation,  whether 
by  t lie  British  or  another  power.  De  Peau  v.  Russell,  1  Brevard  (South 
Carolina),  441  ;  2  Am.  Dec.  (!7t>.  It  was  also  held  that  there  could  be  no 
abandonment,  if  before  giving  notice  thereof,  the  insured  learned  that  the 
vessel  had  been  released,  and  had  proceeded  on  her  voyage  and  arrived  in 
safety  at   her  destination. 

But  when  the  vessel  was  captured,  and  the  insured  notified  the  insurer 
and  abandoned  her  during  her  detention,  and  the  insurer  refused  to  accept, 
this  was  held  to  fix  the  insurer's  liability  as  for  total  loss  although  the  vessel 
was  subsequently  restored  and  arrived  safely  at  her  destination.  The  test 
was  the  situation  at  the  time  of  the  abandonment.  Lee  v.  Boardman,  3  Mass. 
238;  3  Am.  Dec.  132  ;  Marshall  v.  Delaware  Ins.  Co..  i  Cranch  (U.  S.  Sup.  Ct), 
202.  And  in  New  York,  in  Church  v.  Bedient,  1  Caines  Cases  (Ct.of  Errors),  21. 
in  1804,  it  was  held,  overruling  previous  decisions,  that  a  restoration  previous 
to  the  abandonment,  although  unknown  to  the  insured,  defeats  the  abandon- 
ment.    Citing  the  principal  case. 

Where   the   loss    by   the   terms  of    the  policy   is  payable  at  a  eiven  time 


20  ABANDONMENT. 


Nos.  2,  3,  4.  —  Allen  v.  Sugrue.  —  Rule. 


after  notice,  it  subsists  as  for  total  loss,  although  during  the  period  of  credit 
it  ceased  to  be  total.     Munson  v.  New  England  Ins.  Co.,  4  Mass.  88. 

The  capture  must  be  actual.  Fear  of  capture  and  consequent  discon- 
tinuance of  the  voyage  will  not  justify  abandonment.  Richardson  v.  Maine 
Ins.  Co.,  6  Mass.  102  ;  4  Am.  Dec.  92  (citing  Hadkinson  v.  Robinson,  3  B.  &  P. 
:J8S)  ;  Craig  v.  United  States  Ins.  Co.,  6  Johnson  (N.  Y.),  226 ;  5  Am.  Dec.  222 ; 
Brewer  x.  Union  Ins.  Co.,  12  Mass.  169;  7  Am.  Dec.  53;  Savage  v.  Pleasants, 
5  Binney,  403  (Penn.)  ;  6  Am.  Dec.  124. 

The  abandonment,  having  duly  been  made,  is  not  prejudiced  by  subse- 
quent efforts  of  the  captain  to  effect  a  compromise  with  the  captors.  J nine  I 
v.  Marine  Ins.  Co.,  7  Johnson  (1ST.  Y.)*  412 ;  5  Am.  Dec.  283. 

The  right  of  abandonment  is  not  affected  by  the  supercargo's  neglect  to 
put  in  a  claim  to  the  vessel.  By  Walworth,  Chancellor,  Ocean.  Ins.  Co.  v. 
Francis,  2  Wendell  (X.  Y.),  64 ;  19  Am.  Dec.  549. 

The  vessel  may  be  abandoned  if  the  difficulty  of  recovering  her  is  great 
and  the  probability  small.  Thompson  v.  Mississippi,  8fc.  Ins.  Co.,  2  Louisiana, 
228 ;  22  Am.  Dec.  129,  citing  the  principal  case. 

Where  a  vessel  is  prevented  from  entering  any  port  mentioned  in  her 
instructions,  and  compelled  to  terminate  the  voyage  at  a  place  to  which  she 
was  ordered  by  a  vessel  of  war,  she  may  be  abandoned.  Symonds  v.  Union 
Ins.  Co.,  4  Dallas  (U.  S.  Circ.  Ct.),  417  :  and  so  where  she  is  prevented  from 
entering  by  an  embargo,  McBride  v.  Marine  Ins.  Co.,  5  Johnson  (X.  Y.),  299; 
or  by  blockade,  Schmidt  v.  United  Ins.  Co.,  1  Johnson  (X.  Y.),  249. 

There  is  a  constructive  total  loss  of  cargo  where  it  is  captured,  seized, 
or  detained.  Marine  Ins.  Co.  v.  Tucker,  3  Cranch  (U.  S.  Sup.  Ct.),  357  ; 
Dorr  v.  New  England  M.  Ins.  Co.,  4  Mass.  221  ;  Clarlson  v.  Phoenix  Ins.  Co., 
9  Johnson  (X.  Y.),  1 ;  Dutilh  v.  Gatliff,  4  Dallas  (Penn.),  446. 


No.  2.  — ALLEN   v.   SUGRUE. 

(k  b.  1828.) 

No  3.  — IRVING   v.   MANNING. 

(h.  l.  1848.) 

No.  4.  —  FARNWORTH   v.   HYDE. 
(ex.  ch.  from  c.  p.  1866.) 

RULE. 

Where  insured  ship  is  so  much  damaged  by  a  peril  in- 
sured against  as  to  be  not  worth  repairing,  which  is  a 
question  for  the  jury,  it  is  a  total  loss ;  and  the  assured 
may  abandon,  and  recover  the  value  stated  in  the  policy, 
although  it  exceeds  the  estimated  repairs. 


SECT.   I.  —  WHERE   COMPETENT.  21 

No.  2.  —  Allen  v.  Sugrue. 

A  similar  principle  applies  to  a  policy  on  goods,  the 
criterion  being  whether  they  can  be  forwarded  to  arrive 
in  a  merchantable  state,  and  so  as  to  be  worth  the  cost  of 
forwarding  them  (not  including  the  original  freight). 

Allen  v.  Sugrue. 
8  B.  &  C.  561. 

Assumpsit  against  the  secretary  of  the  St.  Patrick's  Assurance 
Company  on  a  policy  effected  by  the  bankrupt  on  the  ship  Ben- 
son, valued  at  £2000,  for  twelve  months  from  the  3d  of  December, 
1825,  averring  a  total  loss  by  perils  of  the  sea.  The  defendants 
paid  money  into  court  to  cover  an  average  loss,  and  pleaded  the 
general  issue.  At  the  trial  before  Bayley,  J.,  at  the  last  Summer 
assizes  for  Newcastle-upon-Tyne,  it  was  proved  that  the  policy  was 
duly  executed,  and  that  the  Benson  was  afterwards  stranded  at 
the  entrance  of  the  Hull  dock.  That  it  would  have  cost  about 
.£1450,  to  repair  her,  and  that  when  repaired  she  would  not  have 
been  worth  that  sum.  For  the  defendant  it  was  contended,  that 
the  plaintiffs  could  not  recover  for  a  total  loss  ;  as  in  that  case  they 
would  receive  £2000,  whereas  the  cost  of  repairing  the  damage 
done  to  the  ship  would  not  be  more  than  £1450,  and  that,  as  suffi- 
cient was  paid  into  court  to  recover  a  loss  of  £1450,  the  plaintiffs 
must  be  nonsuited.  The  learned  judge  reserved  the  point,  and 
left  it  to  the  jury  to  say  whether  the  ship  was  worth  repairing,  and 
they  found  that  she  was  not,  and  a  verdict  was  entered  for  the 
plaintiffs  for  a  total  loss.     In  Michaelmas  term, 

F.  Pollock  moved  for  a  rule  nisi  to  enter  a  nonsuit.  The  utmost 
that  the  assured  can  claim  is  an  indemnity.  If,  therefore,  the  un- 
derwriters are  prepared  to  pay  the  amount  of  repairs  necessary, 
or  themselves  to  undertake  the  repairs,  the  assured  have  no  right 
to  take  the  actual  value  for  the  purpose  of  converting  mere  damage 
into  a  constructive  total  loss,  and  then  to  call  upon  the  under- 
writers to  pay  the  agreed  value  in  the  policy.  If  the  agreed  value 
is  to  bind  the  underwriters  in  ascertaining  the  amount  of  the  loss  if 
total,  it  ought  equally  to  bind  the  assured  in  estimating  whether 
the  loss  was  total  or  not.  [Lord  Tenterdex,  C  .J.  Can  there  be  a 
different  rule  in  ascertaining  whether  a  loss  be  total  or  not  in  an 
<»pen  policy  and  a  valued  policy  ?]  The  rule,  if  carefully  examined, 
is  really  the  same  ;  but  a  constructive  total  loss  is  in  fact  not  a 


22  ABANDONMENT, 


No.  2.  —  Allen  v.  Sugrue. 


total  loss.  The  ship  in  this  case  existed  in  specie,  was  capable  of 
being  repaired,  and  might,  by  such  repair,  have  been  put  into  as 
good  or  a  better  condition  than  she  was  in  before  the  accident.  To 
call  such  a  state  of  things  a  total  loss,  even  though  qualified  as  a 
constructive  total  loss,  would  be  an  abuse  of  language,  but  that  it 
shortly  expresses  the  real  state  of  things,  namely,  that  with  refer- 
ence to  the  actual  value  of  the  vessel  it  is  not  worth  while  to 
repair.  In  an  open  policy,  the  actual  value  is  the  criterion  accord- 
ing to  which  the  underwriter  is  to  pay.  In  a  valued  policy,  the 
criterion  ought  also  to  be  the  same,  namely,  that  according  to 
which  the  underwriter  is  to  pay,  that  is  the  agreed  value.  The 
effect  of  allowing  the  assured  to  claim  as  he  has  in  this  case  is 
unjust,  as  it  gives  him  much  more  than  an  indemnity  for  a  loss 
which  (by  whatever  name  it  be  called)  is  a  mere  case  of  damage. 
Where  the  loss  is  in  fact  total,  the  underwriter  cannot  complain 
of  being  called  on  to  pay  the  full  agreed  value  in  lieu  of  the  ship 
which  he  cannot  restore;  but  where  the  loss  is  not  in  fact  total,  it 
is  sufficient  to  put  the  assured  in  as  good  a  situation  as  he  would 
have  been  in  had  the  loss  not  occurred.  A  constructive  total  loss, 
as  it  is  called,  may  arise  in  various  ways,  not  merely  by  a  ship  not 
being  worth  repairing,  but  by  certain  charges  upon  her  exceeding 
her  actual  value.  Suppose  a  case  of  salvage,  the  vessel  remaining 
not  only  as  an  existing  ship,  but  absolutely  uninjured  by  the  cir- 
cumstances which  gave  rise  to  the  salvage,  could  the  assured  say 
this  is  a  constructive  total  loss,  —  if  we  wTere  uninsured  we  should: 
not  pay  the  salvage,  and  therefore,  we  call  on  you  for  the  total 
loss  ?  Or,  might  not  the  underwriters  say,  we  will  pay  you  the 
salvage,  and  restore  you  your  vessel  undamaged,  and  what  more 
can  you  require  ?  There  is,  besides,  this  mischief  in  allowing  the 
assured  thus  to  estimate  the  loss  on  a  valued  policy  :  that  as  long 
as  there  would  be  a  surplus  of  the  smallest  amount  after  repairing 
the  vessel,  the  loss  is  not  to  be  deemed  total,  but  an  average  loss 
only,  and  the  assured  can  claim  the  repairs  only  ;  but  if  the  repairs 
required  go  the  least  beyond  that  point,  the  loss  is  to  be  deemed 
total,  and  the  assured  may  demand  the  agreed  value.  A  difference,- 
therefore,  of  £~>  in  the  damage,  may  make  a  difference  of  several 
hundred  pounds  in  the  loss.  In  this  case,  if  the  repairs  necessary 
had  been  only  <£1400,  the  underwriters  would  have  been  liable  to 
that  only,  and  might  have  deducted  one-third  new  for  old.  lint 
being    £1450  the  vessel  is    not  worth    repairing,  and  the   under- 


SECT.  I.  —  WHERE    COMPETENT.  23 


No.  3.  —  Irving  v.  Manning. 


writers  are  called  on  to  pay  .£2000.  An  increase,  therefore,  of  the 
damage  by  £50  makes  a  difference  to  the  underwriters  of  near 
.£1000.  The  fallacy  seems  to  arise  from  calling  this  a  constructive 
total  loss,  which,  though  a  convenient  expression,  really  means  a 
state  of  things  in  which  the  loss  is  not  total. 

Lord  Tenterden,  C.  J.  I  am  of  opinion  that  the  question,  whether 
the  loss  sustained  is  a  partial  or  total  loss,  is  precisely  the  same 
where  the  value  of  the  ship  has  been  mentioned  in  the  policy,  and 
where  that  has  been  left  open.  If  the  value  has  not  been  men- 
tioned, it  must  be  ascertained  by  evidence  ;  if  it  has  been  mentioned, 
then  all  further  inquiry  is  unnecessary,  as  the  parties  have  agreed 
as  to  what  shall  in  the  event  of  loss  be  considered  the  value.  If 
underwriters  find  by  experience  that  the  practice  of  entering  into 
valued  policies  is  injurious  to  them,  they  may  very  easily  avoid  it 
for  the  future.  Then,  was  this  a  total  loss  ?  The  jury  have  found 
that  the  ship  was  so  much  damaged  as  not  to  be  worth  repairing, 
or,  in  other  words,  that  although  the  materials  of  the  ship  remained, 
tha  ship  itself  did  not.  That  in  my  mind  constitutes  a  total  loss  ; 
and  it  would  be  strange  if  this  were  otherwise,  for  the  ship  ceased 
to  exist  for  any  useful  purposes  as  a  ship.  A  total  loss  of  the  ship 
ought,  therefore,  to  be  paid  for,  and  that  is  the  sum  agreed  upon  as 
the  estimated  value  of  the  ship,  minus  the  value  of  the  materials 
saved. 

Bayley,  J.  I  think  that  the  question  whether  a  loss  is  total  or 
not  depends  upon  the  facts  of  the  case,  and  the  nature  and  extent 
of  the  damage  done  to  the  ship ;  and  not  upon  the  nature  of  the 
policy  effected  upon  her.  Whether  that  is  valued  or  open  cannot 
alter  the  nature  of  the  loss.  The  only  difference  between  them  is, 
that  in  the  one  case  the  assured  must  prove  the  value  of  the  thing 
insured  ;  in  the  other  he  need  not.  Rule  refused. 

Irving  v.  Manning-. 
(o  c.  b.  391.) 

This  was  an  action  to  recover  the  amount  of  a  policy  of  insur- 
ance on  ship.  The  declaration  averred  a  total  loss  by  perils  of 
the  sea. 

The  ship  was  valued  in  the  policy  at  £17,500,  and  it  appeared 
by  the  special  verdict  that  this  was  not  more  than  the  value  to 
the  owner  of  the  ship  and  stores,  &c,  at  the  time  of  effecting  the 


24  ABANDONMENT. 


No.  3.  —  Irving  v.  Manning. 


policy.  It  further  appeared  that,  after  damage  caused  by  the 
perils  of  the  sea,  it  would  have  cost  £10,500  to  repair  the  ship,  and 
that  she  would  have  been  worth  £9000  when  repaired. 

After  argument  before  the  House  of  Lords,  the  opinion  of  the 
judges  was  requested  upon  the  question  whether  in  the  judgment 
upon  the  special  verdict  the  damages  ought  to  be  taken  on  prop- 
erty valued  at  £3000  (the  proportion  of  the  £17,500  subscribed 
by  the  defendant)  or  at  £1500  (the  like  proportion  of  the  esti- 
mated amount  of  the  damage  sustained).  After  deliberation,  the 
unanimous  opinion  of  the  judges  (understood  to  have  been  drawn 
up  by  Mr.  Baron  Parke)  was  delivered  by  — 

Patteson,  J.  The  question  upon  which  your  Lordships  desired 
to  have  the  opinion  of  Her  Majesty's  judges,  was;  "  Whether,  in 
the  judgment  upon  the  special  verdict  in  this  case,  the  damages 
ought  to  be  taken  on  property  valued  at  £3000,  or  at  £1500.'' 

I  am  desired  by  the  judges  who  heard  the  argument  at  your 
Lordships'  bar,  to  give  their  answer  to  this  question,  and  to  state 
their  opinion,  that  the  plaintiff  below  was  entitled  to  recover,  upon 
the  facts  found  by  the  special  verdict,  the  sum  of  £3000. 

Upon  the  record,  it  appears  that  the  action  was  brought  on  a 
policy  for  £3000  on  a  ship  valued  at  £17,500.  The  other  facts 
found  by  the  special  verdict  show  that  it  was  fairly  valued  at 
that  sum  ;  and,  indeed,  it  would  be  assumed  that  it  was  so,  unless 
fraud  were  pleaded  and  proved :  and  then  it  is  found  that  the 
vessel,  during  the  voyage,  was  so  damaged  as  to  be  incompetent  to 
proceed  without  repairs ;  that  the  necessary  expenditure,  in  order 
to  repair  her  and  make  her  seaworthy,  would  have  amounted  to 
£10,500,  and  that  the  ship  would  have  been  then  worth  £9000  only, 
which  was  her  marketable  value  then  and  at  the  time  of  the 
policy  ;  that  a  prudent  owner,  uninsured,  would  not  have  repaired 
the  vessel ;  and  that  she  was  duly  abandoned  to  the  underwriters. 

If  this  had  not  been  the  case  of  a  valued  policy,  it  is  clear,  that, 
on  the  facts  found,  there  was  a  total  loss  ;  for,  a  vessel  is  totally 
lost,  within  the  meaning  of  a  policy,  when  it  becomes  of  no  use  or 
value,  as  a  ship,  to  the  owner,  and  is  as  much  so  as  if  the  vessel 
had  gone  to  the  bottom  of  the  sea,  or  had  been  broken  to  pieces, 
and  the  whole  or  great  part  of  the  fragments  had  reached  the  shore 
as  wreck ;  and  the  course  has  been,  in  all  cases  in  modern  times,  to 
consider  the  loss  as  total,  where  a  prudent  owner,  uninsured, 
would  not  have    repaired.     In  an  open  policy,  therefore,  the  as- 


SECT.  I. — WHERE   COMPETENT.  25 

No.  3.  —  Irving  v.  Manning. 

sured  would  have  been  entitled  to  recover  for  a  total  loss,  the 
amount  to  be  ascertained  by  evidence. 

What  difference,  then,  arises  from  the  circumstance  that  the 
policy  is  a  valued  policy  ? 

By  the  terms  of  it,  "  the  ship,  &c,  for  so  much  as  concerns  the 
assured,  by  agreement  between  the  assured  and  assurers,  are,  and 
shall  be,  rated  and  valued  at  £17,500;"  and  the  question  turns 
upon  the  meaning  of  these  words.  Do  they,  as  contended  for  by 
the  plaintiff  in  error,  amount  to  an  agreement,  that,  for  all  pur- 
poses connected  with  the  voyage,  —  at  least  for  the  purpose  of 
ascertaining  whether  there  is  a  total  loss  or  not,  —  the  ship  shall 
be  taken  to  be  of  that  value,  so  that,  when  a  question  arises 
whether  it  would  be  worth  while  to  repair,  it  must  be  assumed 
that  the  vessel  would  be  worth  that  sum  when  repaired  ?  or  do 
they  mean  only,  that,  for  the  purpose  of  ascertaining  the  amount 
of  compensation  to  be  paid  to  the  assured,  when  the  loss  has  hap- 
pened, the  value  shall  be  taken  to  be  the  sum  fixed,  in  order  to 
avoid  disputes  as  to  the  quantum  of  the  assured's  interest  ? 

We  are  all  of  opinion  that  the  latter  is  the  true  meaning  ;  and 
that  this  is  consistent  with  the  language  of  the  policy,  and  with 
every  case  that  has  been  decided  upon  valued  policies. 

In  the  case  of  Letvis  v.  Mucker,  2  Burr.  1167,  on  a  valued  policy 
on  goods,  the  amount  to  which  the  underwriter  was  held  liable 
for  a  partial  loss,  was  ascertained  by  computing  such  a  proportion 
of  the  value  in  the  policy  as  the  price  for  which  the  damaged 
goods  actually  sold,  bore  to  the  price  for  which  sound  goods  would 
have  sold  at  the  port  of  delivery ;  so  that,  in  estimating  the 
extent  of  the  loss,  that  is,  in  determining  whether  it  was  a  loss  to 
the  extent  of  one-half,  one-third,  or  to  any  other  extent,  the  value 
in  the  policy  was  wholly  disregarded,  and  nothing  was  considered 
but  the  state  of  the  goods  as  ascertained  by  their  selling  prices. 
If  sound  goods  would  have  brought  double  the  price  of  the  dam- 
aged, the  loss  was  one-half,  or  fifty  per  cent,  whatever  the  value 
in  the  policy  might  be.  But,  the  extent  and  nature  of  the  loss 
being  ascertained  by  this  comparison,  the  underwriter  was  held 
liable  to  pay  the  proportion,  so  ascertained,  of  the  value  in  the 
policy  ;  and  this  mode  of  treating  partial  losses  on  goods  is  always 
adhered  to. 

Now,  the  question  whether  a  loss  is  total  or  partial,  is  a  ques- 
tion of  the  same  nature  as  the  question  what  is  the  extent  of  a 


26  ABANDONMENT. 


No.  3.  —  Irving  v.  Manning. 


partial  loss ;  and  there  is  the  same  reason  in  both  cases,  for 
excluding  the  consideration  of  the  value  in  the  policy  from  the 
inquiry  as  to  the  extent  of  the  loss,  and  for  treating  that  value  as 
binding,  on  the  question  of  how  much  the  subject  so  totally  or 
partially  lost  was  worth  ;  so  that  the  mode  of  determining  the 
question  whether  the  loss  was  total  or  not,  which  lias  been  adopted 
in  this  case,  agrees,  in  so  far  as  it  excludes  the  consideration  of 
the  value  in  the  policy,  with  that  in  which  the  inquiry  into  the 
extent  of  a  partial  loss  on  goods  is  always  conducted.  Such  has 
been  the  construction  put  upon  valued  policies,  in  the  cases  which 
are  questioned  in  this  writ  of  error, — Allen  v.  Sugrue,  Young  v. 
Turing,  and  Eggington  v.  Lawson  (in  1832),  and  Heme  v.  Hay  (in 
1M42),  cited  by  Sir  F.  Thesiger.  These  cases  have  now  been  consid- 
ered for  many  years  as  having  settled  the  law :  they  have  been  the 
basis  on  which  contracts  without  number  have  been  framed;  and 
they  ought  not  to  be  departed  from  on  slight  grounds.  The  principle 
laid  down  in  these  latter  cases,  is  this,  —  that  the  question  of  loss, 
whether  total  or  not,  is  to  be  determined  just  as  if  there  was  no 
policy  at  all  ;  and  the  established  mode  of  putting  the  question, 
when  it  is  alleged  that  there  lias  been,  what  is  perhaps  improp- 
erly called,  a  constructive  total  loss  of  a  ship,  is,  to  consider 
the  policy  altogether  out  of  the  question,  and  to  inquire  what  ;i 
prudent  uninsured  owner  would  have  done  in  the  state  in  which 
the  vessel  was  placed  by  the  perils  insured  against.  If  he  would 
not  have  repaired  the  vessel,  it  is  deemed  to  be  lost. 

When  this  test  has  been  applied,  and  the  nature  of  the  loss  has 
been  thus  determined,  the  quantum  of  compensation  is  then  to  be 
fixed. 

In  an  open  policy,  the  compensation  must  then  be  ascertained  by 
evidence.  In  a  valued  policy,  the  agreed  total  value  is  conclusive: 
each  party  lias  conclusively  admitted  that  this  fixed  sum  shall  be 
that  which  the  assured  is  entitled  to  receive,  in  case  of  a  total  loss. 

It  is  argued  that  this  course  of  proceeding  infringes  on  the  gen- 
erally received  rule,  that  an  insurance  is  a  mere  contract  of  indem- 
nity ;  for  thus  the  assured  may  obtain  more  than  a  compensation 
for  his  loss  :  and  it  is  so. 

A  policy  of  assurance  is  not  a  perfect  contract  of  indemnity.  It 
must  be  taken  with  this  qualification,  that  the  parties  may  agree 
beforehand  in  estimating  the  value  of  the  subject  assured,  by  way 
of  liquidated  damages,  as,  indeed,  they  may  in  any  other  contract 
to  indemnify. 


SECT.  I.  —  W II  EKE    COMPETENT. 


No.  4.  —  Farnworth.  v.  Hyde. 


This  opinion  was  unanimously  adopted  by  the  House  including 
the  learned  Lords  Cottenham  and  Campbell;  the  latter  of  whom 
concluded  as  follows  :  — 

There  was  nothing  illegal  in  this  contract:  we  have  only  to  put 
a  construction  upon  it;  and,  if  it  be  a  just  contract,  and  there  is 
neither  any  rule  of  common  law,  nor  any  statute,  to  prevent  that 
contract  from  being  carried  into  effect,  we  are  bound  to  give  effect 
to  it,  and  to  pronounce  in  favour  of  the  plaintiff  below. 

I  repeat,  that  I  rejoice  that  this  question,  which  has  so  long- 
agitated  Westminster  Hall,  is  now  forever  set  at  rest,  and  satis- 
factorily decided. 

The  judgment  of  the  Exchequer  Chamber,  which  affirmed  the 
judgment  of  the  Common  Pleas,  was  therefore  affirmed  with  costs. 


Farnworth  v.  Hyde. 
L.  R.  2  C.  P.  204.  (s.  c.  :;<!  L.  J..  ('.P.  33.) 

This  was  an  appeal  to  the  Exchequer  Chamber  from  a  judgment 
of  the  Common  Pleas,  and  was  argued  upon  a  case  stated  for  the 
opinion  of  the  Court.  The  facts  of  the  case  are  for  the  purposes 
of  the  decision  sufficiently  stated  in  the  judgment  of  the  court 
(Pollock,  C.  B.,  Ciianxell,  B.,  Blackburn  and  Mellor,  JJ.,  Pico  it, 
B.,  and  Shee,  J.),  which  was  delivered  by 

Chamxell,  B.  This  was  an  action  upon  a  marine  policy  of  insur- 
ance on  goods  from  Quebec  to  Liverpool.  The  declaration  claimed 
a  total  loss.  The  defendant  paid  into  court  as  for  a  partial  loss  of 
23  per  cent,  and  the  plaintiffs  claimed  damages  ultra. 

From  the  statement  in  the  case  it  appears  that  the  vessel  with 
the  insured  cargo  of  deal  on  board  was  wrecked  in  the  autumn  in 
the  river  St.  Lawrence,  that  she  lay  there  all  the  winter,  and  in  the 
spring  was  sold  by  auction,  when  the  hull  was  bought  fur  £'4."iO 
and  the  cargo  for  £7o0  by  the  same  purchaser. 

The  purchaser  succeeded,  without  much  difficulty  or  expense,  in 
getting  them  oft'  together  and  bringing  them  safely  together  t<> 
Quebec,  where  the  cargo  was  sold  by  him  for  more  than  double  the 
price  given  for  it.  The  purchase  of  the  hull,  however,  taken  by 
itself,  was  a  losing  speculation.  There  was  evidence  that  the  cargo 
■could   not   have   been    saved   iu  this  manner  unless  the  hull   had 


28  ABANDONMENT. 


No.  4.  —  Farnworth  v.  Hyde. 


been  purchased  also  ;  and  that  there  were  some  unexpected  acci- 
dents of  weather  and  tide  which  facilitated  the  getting  off  of  the 
ship  and  saving  of  the  cargo  by  the  purchaser :  and  it  was  con- 
tended on  behalf  of  the  plaintiffs  that  the  owners  of  the  goods  were 
not  bound  to  purchase  the  hull,  and  that  the  jury  should  look  at 
the  state  of  the  matters  as  the  hull  and  cargo  lay  when  they  were 
sold ;  and  that  the  sale  was  justifiable,  if,  as  matters  then  stood,  it 
would  not  have  been  practicable  to  save  the  cargo,  and  send  it  on 
to  its  destination,  without  purchasing  the  hull. 

In  order  to  support  this  view  of  the  case,  they  gave  evidence 
that  the  value  of  the  cargo,  if  it  had  been  sent  on  and  had  arrived 
in  Liverpool,  would  have  been  £4300,  which,  deducting  the  bill  of 
lading  freight  of  £1556,  would  leave  a  net  value  of  £2744.  They 
also  gave  in  evidence  a  calculation  that,  in  order  to  send  it  on  from 
the  place  where  it  lay  in  peril  in  the  wrecked  vessel,  it  would  be 
necessary  to  land  it,  then  raft  it  to  a  vessel  brought  down  for  the 
purpose,  and  re-load  it  as  weather  permitted  ;  and  they  made  out 
an  estimate  of  these  expenses,  as  follows  :  — 

£ 

The  cost  of  landing  it 350 

To  raft  it  to  another  vessel  and  reload  it    .      .       700 
Increased  freight  in  addition  to    the    original 

freight    at    £1550,    freights    having    risen 

between  the  date  of  the  original  shipment 

and  of  the  opening  of  the  navigation  of  the 

river,  when  another  A-essel  conld  have  been 

chartered 296     0     0 

Additional  freight  that  woidd  have  been  charged 

for  lying  off  to  take  the  cargo  from  where  it 

was  stored  instead  of  loading  it   at  Quebec     700     0     0 


.<?. 

d. 

0 

0 

o 

0 

£2046     0     0 


And  evidence  was  given,  that,  besides  all  these,  there  would 
probably  have  been  a  loss  by  depreciation,  which  was  variously 
estimated  by  the  witnesses,  —  the  highest  estimate  being  12  per 
cent  on  the  Liverpool  value,  or  £515,  which  if  added  to  the  £2046 
would  bring  up  the  expenditure  to  £2561. 

The  plaintiffs  also  gave  evidence  that,  in  the  ordinary  state  of 
the  weather,  there  would  be  risk  of  loss  of  some  portion  of  the 
cargo  during  the  operations  of  landing,  rafting,  and  reshipping  it, 


SKi'T.   I.  —  WHERE   COMPETENT.  29 


No.  4.  —  Farnworth  v.  Hyde. 


and  that,  if  the  weather  was  unfavourable,  that  risk  would  be 
greater. 

No  notice  of  abandonment  was  given. 

On  this  state  of  the  evidence,  the  judge  asked  the  jury  two  ques- 
tions,—  first,  whether  the  sale  of  the  ship  was  justifiable,  which 
the  jury  answered  in  the  affirmative,  and  on  which  finding  no 
question  is  now  raised;  —  secondly  (see  paragraph  42  of  the  case), 
whether  it  was  right  to  sell  the  cargo;  directing  them,  "that 
whether  it  was  right  to  sell  the  cargo  or  not,  would  depend  on 
whether  the  cargo  could  have  been  practically  carried  to  its  desti- 
nation, and  that  he  meant  the  word  '  practically  '  to  be  understood 
in  its  mercantile  sense  ;  and  that,  whether  the  cargo  could  be  prac- 
tically carried  to  its  destination  would  depend,  under  all  the  cir- 
cumstances, on  whether  the  cost  of  bringing  the  cargo,  added  to 
the  amount  of  depreciation,  would  have  left  any  appreciable  margin 
of  profit."  The  jury  answered  this  question  in  the  affirmative,  and 
the  verdict  was  entered  for  a  total  loss,  giving  leave  to  the  defend- 
ant, as  is  stated  in  paragraph  43,  "  to  move  to  enter  a  verdict  for 
the  defendant,  or  a  nonsuit,  on  the  ground  that  there  was  no  evi- 
dence of  a  total  loss,  and  no  evidence  of  a  partial  loss  exceeding 
the  sum  paid  into  court ;  or  to  reduce  the  damages  to  the  sum 
actually  due  as  and  for  a  partial  loss :  and  it  was  at  the  same  time 
agreed,  that,  if  the  court  should  be  of  opinion  that  the  loss  was 
not  total,  the  amount  of  the  partial  or  average  loss  should,  if 
necessary,  be  corrected  by  the  court,  or  by  an  arbitrator  to  be 
agreed  upon." 

A  rule  was  obtained  accordingly,  which  was  after  argument  dis- 
charged by  the  majority  of  the  Court  of  Common  Pleas,  my  Brother 
Byles  dissenting ;  from  which  decision  this  is  an  appeal. 

The  first  question,  therefore,  to  be  determined,  is,  whether  there 
was  evidence  on  which  the  jury  might  reasonably  find  that  the 
cargo  could  not  be  practically  carried  on  to  its  destination. 

It  is  to  be  observed,  that,  assuming  the  jury  to  have  believed 
that  the  expenses  would  have  been  the  maximum  amount  of  which 
there  was  any  evidence,  namely,  £2561.  yet,  on  the  plaintiffs'  own 
figures,  there  would  have  been  a  very  considerable  margin  of  profit. 
The  plaintiffs'  counsel  assumed  that  this  margin  of  profit  was  the 
difference  between  the  Liverpool  value  of  the  cargo,  after  deducting 
the  original  freight,  and  the  expenses  of  forwarding  it,  added  to  the 
estimated  depreciation,  —  that  is,  on  their  own  figures,  £183  ;  and 


30  ABANDONMENT. 


No.  4.  —  Farnworth  v.  Hyde. 


they  argued  that  the  jury  might  reasonably  estimate  the  probable 
loss  of  cargo  during  the  operations  of  landing,  rafting,  and  reship- 
ping,  at  an  amount  which  would  more  than  absorb  this  margin. 

By  some  oversight  not  explained  to  us,  the  defendant's  counsel 
never  called  the  attention  of  the  Court  of  Common  Pleas,  nor  of 
the  Court  of  Exchequer  Chamber,  to  the  cardinal  postulate  of  the 
plaintiffs'  counsel,  that  the  original  bill  of  lading  freight,  Xl556r 
was  to  be  deducted.  The  case  was  argued  in  the  court  below  on 
the  assumption  that  the  only  question  was,  whether  there  was 
evidence  to  justify  the  jury  in  finding  that  the  probable  loss  might 
have  been  so  high  as  to  absorb  the  ,£183;  and  the  judges,  not 
having  their  attention  called  to  the  matters  which  the  counsel  took 
for  granted,  considered  it  in  that  way  only.  The  majority  of  the 
court  (taking  it  for  granted  that  this  was  the  proper  question) 
thought  that  there  was  evidence  on  which  the  jury  might  find  for 
the  plaintiffs  to  that  extent.  My  Brother  Byles  thought  there  was 
not.  In  this  court,  the  argument  had  proceeded  a  great  way,  in 
the  sittings  after  Easter  Term,  before  it  occurred  to  a  member  of 
the  court  of  error  as  then  constituted,1  that  we  were  not  consider- 
ing the  right  question  ;  for,  that,  unless  the  Court  of  Common  Pleas- 
in  Rosettov.  Gurney,  11  C.  B.  176  (E.  C.  L.  P.  vol.  73),  20  L.  J.  C. 
P.  257,  had  laid  down  a  wrong  rule,  the  question  was,  whether 
there  was  evidence  that  would  justify  the  jury  in  finding  a  loss 
which  would  account  for  the  difference  between  the  estimated 
depreciation  and  the  cost  of  forwarding,  and  the  Liverpool  value,. 
without  deducting  the  original  bill  of  lading  freight  of  £1556,  and 
consequently  that  the  plaintiffs  had  to  show  that  there  was  evi- 
dence to  justify  their  finding  a  probable  loss  of  cargo  to  the  extent 
of  more  than  XI 739. 

Mr.  Mellish  had  the  opportunity  of  preparing  himself  to  meet 
this  view  of  the  case  ;  and  in  the  sittings  after  Trinity  Term  he 
was  heard  at  length  upon  this  point  before  the  Lord  Chief  Baron, 
my  Brothers  Blackburn,  Mellor,  Pigott,  Shee,  and  myself.  And 
we  are  all  of  opinion  that,  where  goods  are  in  consequence  of  the 
perils  insured  against  lying  at  a  place  different  from  the  place  of 
their  destination,  damaged.,  but  in  such  a  state  that  they  can  at 
some  cost  be  put  into  a  condition  to  be  carried  to  their  destination, 
the  jury  are  to  determine  whether  it  is  practically  possible  to  carry 
them  on  ;  that  is,  according  to  the  well-known  exposition  in  Moss  v.. 

i  Blackburn,  J. 


SECT.  I.  —  WHERE    COMPETENT.  31 

No.  4.  —  Farnworth  v.  Hyde. 

Smith,  9  C.  B.  94  (E.  C.  L.  E.  vol.  67),  19  L.  J.  C.  P.  225,  whether 
to  do  so  will  cost  more  than  they  are  worth  ;  and  that,  in  deter- 
mining this,  the  jury  should  take  into  account  all  the  extra  expenses 
consequent  on  the  perils  of  the  sea,  such  as  drying,  landing,  ware 
housing,  and  reshipping  the  goods;  but  that  they  ought  nut  to  take 
into  account  the  fact  that  if  they  are  carried  on  in  the  original 
bottom,  or  by  the  original  shipowner  in  a  substituted  bottom,  they 
will  have  to  pay  the  freight  originally  contracted  to  be  paid ;  that 
being  a  charge  to  which  the  goods  are  liable  when  delivered, 
whether  the  perils  of  the  sea  affect  them  or  not.  And  we  also 
agree  that  Rosetto  v.  Gurney  correctly  decides  that,  where  the 
original  bottom  is  disabled  by  the  perils  of  the  seas,  so  that  the 
shipowner  is  not  bound  to  carry  the  goods  on,  and  he  does  not 
choose  to  do  so,  the  jury  are  not  to  take  into  account  the  whole  of 
the  cost  of  transit  from  the  place  of  distress  to  the  place  of  destina- 
tion, which  must  be  incurred  by  the  goods-owner  if  he  carries 
them  on,  but  only  the  excess  of  that  cost  above  that  which  would 
have  been  incurred  if  no  peril  had  intervened. 

To  hold  otherwise  would  be  to  enable  the  assured  owner  of 
goods  to  bring  into  account  the  whole  of  the  freight  whenever  the 
cost  of  obtaining  a  substituted  bottom  exceeded  the  original  freight 
however  small  the  excess  may  be  :  for,  in  such  a  case,  the  ship- 
owner would  never  carry  on  the  goods  for  the  purpose  of  earning 
his  original  freight,  though  he  might  perhaps  do  so  as  agent  of  the 
goods-owner;  whilst  no  part  of  the  freight  could  ever  be  charged 
when  the  cost  fell  short  of  the  original  freight,  in  which  case  the 
shipowner  would  forward  them.  This  would  be  a  very  unsatis- 
factory state  of  the  law ;  and  we  are  of  opinion  that  the  case  of 
Rosetto  v.  Gurney,  which  prevents  that  result,  was  correctly  de- 
cided. Then  applying  this  to  the  facts  in  the  present  case,  it 
becomes  obvious  that,  whilst  it  is  doubtful  whether  there  was  evi- 
dence justifying  the  verdict,  if  the  jury  had  to  deal  with  a  margin 
of  a  little  more  than  5  per  cent  of  the  value  of  the  goods,  there  is 
clearly  none  justifying  it  when  they  had  to  deal  with  a  margin  of 
about  40  per  cent. 

Mr.  Mellish,  indeed,  said  that  there  are  cases  in  which  a  thing 
in  extreme  and  imminent  danger  of  immediate  destruction  may  be 
justifiably  sold,  although  in  the  event  it  turns  out  that  it  survives 
the  peril,  to  the  great  benefit  of  the  purchaser.  But  there  is  not 
in  this  case  any  evidence  of  such  a  state  of  imminent  and  iinme- 


ABANDONMENT. 


Nos.  2,  3,  4.  — Allen  v.  Sugrue,  &/C. — Notes. 


cliate  peril  as  could  justify  the  verdict  for  a  total  loss  upon  this 
ground. 

We  think,  therefore,  that  the  rule  to  set  aside  the  verdict  for  a 
total  loss  must  be  made  absolute. 

This  renders  it  unnecessary  to  consider  the  question  principally 
argued  in  the  court  below,  as  to  the  necessity  of  a  notice  of  aban- 
donment. On  that  point  we  leave  the  authority  of  the  decision  of 
the  court  below  untouched,  neither  confirmed  nor  weakened  by 
anything  that  has  taken  place  in  this  court. 

On  the  remaining  question,  whether  the  partial  loss  does  or  does 
not  exceed  the  amount  paid  into  court,  we  are  absolutely  without 
materials  for  forming  a  judgment.  The  only  course  which  seems 
practicable  is  that  on  which  the  parties  seem  to  have  agreed  at 
nisi  prius,  namely,  that  an  arbitrator  should  find  the  figures,  and 
raise  and  state  for  the  Court  of  Common  Pleas  any  question  of 
principle  involved,  arising  on  his  findings.  Rule  accordingly. 


ENGLISH    NOTES. 

It  lias  been  thought  convenient  to  collect  and  place  together  the 
cases  relating  to  the  competency  of  abandonment  whether  of  ship  or 
cargo.  The  latter  part  of  the  head-note  belongs  exclusively  to  Farn- 
worth  v.  Hyde  (No.  4). 

Insurance  on  ship,  cargo,  and  freight  from  Tortola  to  London.  The 
ship  was  driven  back  to  Tortola  unfit  for  the  voyage;  and  it  was  found 
impossible  to  repair  her  for  the  voyage,  or  to  get  another  ship  to  take 
the  cargo.  The  ship  and  cargo  were  accordingly  sold.  The  assured 
abandoned  and  claimed  as  for  a  total  loss.  It  was  admitted  that  the  loss 
of  freight  was  total:  and  it  was  held  that  there  was  also  a  total  loss 
of  the  ship  and  of  the  cargo.  Lord  Mansfield  said  the  general  princi- 
ple was  that  if  the  voyage,  in  consecpience  of  a  peril  within  the  policy, 
is  lost,  or  is  not  worth  pursuing,  that  is  a  total  loss.  Here  the  vessel, 
which  was  a  large  Dutch  ship  with  sugar  from  Tortola  to  London,  was 
driven  back  and  became  totally  unfit  for  the  voyage.  There  was  no 
ship  sufficiently  large,  nor  were  there  ships  enough  to  bring  the  cargo 
to  London.  Under  these  circumstances  the  court  were  of  opinion  that 
the  voyage  was  lost.  Manning  v.  Neicnham  (1702),  3  Dougl.  130;  s.  c. 
2  Camp.  625  in  notis. 

An  insured  ship  captured  by  the  enemy  was  ransomed  and  brought 
home  by  the  captain,  who  refused  to  deliver  her  up  to  the  owners 
except  on  payment  of  the  ransom.  Held,  that  the  owners,  being 
entitled  to  the  possession  as  against  the  illegal  claim  of  the  captain, 


SECT.  I.  —  WHERE   COMPETENT.  33 

Nos.  2,  3,  4.  —  Allen  v.  Sugrue,  &,c.  —  Notes. 

could  not  claim  as  for  a  total  loss.  Parsons  v.  Scott  (Ex.  1810),  2 
Taunt.  363. 

The  plaintiff  claimed  as  for  a  total  loss  of  a  cargo  of  corn  insured 
for  a  voyage.  The  ship  had  put  into  a  port  damaged  and  unfit  to 
pursue  the  voyage,  and  the  assured  had  given  notice  of  abandonment. 
Lord  Ellenbokough,  on  the  case  of  Manning  v.  Newnham  being  cited, 
said,  "  I  accede  to  that;  "  and  he  intimated  in  effect,  that  if  another  ves- 
sel could  not  have  been  procured,  he  would  have  held  that  there  was  a 
total  loss.  But,  the  contrary  appearing  to  be  the  case,  the  plaintiff 
was  nonsuited.  Wilson  v.  Royal  Exchange  Assurance  Co.  (N.  P.  1811), 
2  Camp.  622. 

Policy  on  goods  (copper  and  iron)  at  and  from  London  to  Quebec 
warranted  free  of  particular  average.  The  ship,  damaged  in  a  gale, 
put  into  Kinsale  in  Ireland  for  repairs,  and  was  there  detained  so  as 
to  be  unable  to  complete  the  voyage  that  season.  It  was  stated  that 
another  ship  could  not  be  procured  to  reach  Quebec  before  the  close  of 
the  season  for  navigating  the  St.  Lawrence.  The  cargo  was  sold  at 
Kinsale  as  a  damaged  cargo.  In  an  action  by  the  assured  claiming  as 
on  a  total  loss,  it  was  held  that,  as  there  was  neither  a  destruction 
(actual  or  imminent)  of  the  cargo  nor  permanent  incapacity  of  the 
ship  to  perform  the  voyage,  there  was  no  good  cause  of  abandonment 
so  as  to  amount  to  a  total  loss.  Lord  Ellenbokough,  who  delivered  the 
judgment  of  the  court,  said:  "There  is  not  any  case  nor  principle 
which  authorizes  an  abandonment,  xinless  where  the  loss  has  been 
actually  a  total  loss,  or  in  the  highest  degree  probable,  at  the  time  of 
the  abandonment."     Anderson  v.  Wallace,  (K.  B.  1813),  2  M.  &  S.  240. 

Insurance  on  a  cargo  of  pork  and  flour  separately  valued  at  and  from 
Waterford  to  St.  John's,  Newfoundland,  by  the  ship  A.,  warranted  free 
from  average  on  flour.  The  ship  was  so  damaged  in  a  storm  that  she 
was  driven  back  to  Cork,  and,  after  survey,  was  pronounced  incapable  of 
repair  and  was  broken  up.  The  flour  was  warehoused.  No  question 
was  raised  as  to  the  pork.  Held,  as  to  the  flour,  that  there  was  no 
total  loss.  For,  though  the  ship  was  lost  and  the  season  was  lost, 
there  was  nothing  to  prevent  the  flour  being  sent  to  its  destination  in 
a  merchantable  condition.  Hunt  v.  Royal  Exchange  Assurance  Co. 
(K.  B.  1816),  5  M.  &  S.  47. 

Ship  and  cargo  of  timber  insured  against  {inter  alia)  barratry  of 
the  master  and  crew  (the  timber  valued  at  £12  per  load)  were  carried 
off  by  a  barratrous  act.  The  insured  abandoned.  Ultimately  a  large 
part  of  the  timber  was  sent  (though  not  by  the  act  of  the  insured)  to 
its  destination.  The  insured  had  a  verdict  for  a  total  loss  by  barratry, 
and  under  a  threat  of  execution  obtained  payment  accordingly.  The 
question  being  then   argued  whether  the   underwriters  should  not  be 

VOL.  I.  —  3 


34  ABANDONMENT. 


Nos.  2,  3,  4. — Allen  v.  Sugrue,  &,c.  —  Notes. 


allowed  the  value  under  the^policy  of  that  part  of  the  timber  which  hud 
arrived  (subject  to  the  charges  for  bringing  it  home),  it  was  held  that 
there  was  a  total  loss  of  the  whole  cargo  from  the  time  when  the  barra- 
trous act  was  committed.  Dixon  v.  Held  (K.  B.  1822),  5  B.  &  Aid.  507. 
Abbott,  C.  J.,  who  delivered  the  opinion  of  the  court,  distinguished 
the  case  from  Hunt  v.  Royal  Exchange  Co.  and  others  cited,  on  the 
ground  that  the  cargo  was  by  the  barratrous  act  taken  out  of  the  pos- 
session of  the  insured,  and  that  the  sending  home  of  the  timber  was 
not  the  act  of  the  insured  or  of  any  person  authorized  by  him.  —  Sed 
if  nacre,  whether  there  is  any  reason  in  this  distinction.  The  case  docs 
not  in  this  respect  appear  to  differ  in  principle  from  a  case  where  a 
derelict  ship  is  brought  in  by  salvors  so  as  to  be  worth  more  than  the 
salvage  and  charges. 

The  principle  of  the  judgment  in  Allen  v.  Sugrue  (K.  B.  1828), 
which  was  ultimately  confirmed  by  the  House  of  Lords  in  Irving  v. 
Manning  (1848),  was  in  the  mean  time  upheld  by  the  Exchequer 
Chamber,  on  appeal  from  the  Common  Pleas,  in  Young  v.  Turing 
(1841),   2  Man.   &   Gr.    593. 

Shi})  valued  at  £12,000,  insured  from  Valparaiso  to  England;  the 
freight,  valued  at  £4000,  was  insured  by  a  separate  policy.  The 
ship  sailed  with  a  full  cargo,  but  was  compelled  by  stress  of  weather 
to  put  back  to  Valparaiso;  where  she  was  found  (upon  survey)  so  dam- 
aged that  to  repair  her  would  cost  a  sum  exceeding  the  A'alue  of  the 
freight,  though  less  than  the  value  of  the  ship  when  repaired.  Upon 
this  the  master  sold  her.  Held,  that  there  was  not  a  total  loss  either 
of  ship  or  freight.  Moss  v.  Smith  (C.  P.  1850),  9  C.  B.  94;  19  L.  J. 
C.  P.  225. 

"  As  a  general  rule,  where  the  whole  or  any  part  of  a  cargo  is  prac- 
tically capable  of  being  sent  in  a  marketable  state  to  its  port  of  desti- 
nation, the  master  cannot  sell,  nor  can  the  assured  recover  as  for  a 
total  loss."  Per  Curiam,  Rosetto  v.  Gurney  (C.  P.  1851),  11  C.  B. 
170,  186;  20  L.  J.  C.  P.  257. 

Cargo  of  wheat  (valued)  insured  from  Odessa  to  Liverpool.  The 
vessel  put  back,  sea-damaged,  to  Odessa,  where  she  was  refitted  by 
money  raised  on  bottomry.  She  again  sailed,  was  wrecked,  and 
brought  by  salvors  into  Cork;  where,  the  vessel  being  found  not  worth 
repairing,  and  the  cargo  considerably  damaged,  both  were  sold.  The 
assured  on  cargo  having  claimed  as  for  a  total  loss,  — Held,  that,  in 
ascertaining  whether  it  is  practicable  to  send  the  whole  or  any  part  of 
the  cargo  to  its  port  of  destination  in  a  marketable  state,  the  jury  were 
bound  to  take  into  consideration  the  cost  of  unshipping  the  cargo,  the 
cost  of  warehousing  it,  the  cost  of  transshipping  it  into  a  new  bottom, 
and  the  cost  of  the  difference  of  transit  if  it  could  only  be  effected  at  a 


SECT.  I.  —  WHERE    COMPETENT. 


Nos.  2,  3,  4.  —  Allen  v.  Sugrue,  &C.  —  Notes. 


higher  than  the  original  rate  of  freight,  adding  the  proportion  of  the 
salvage  corresponding  to  the  value  of  the  cargo  saved,  but  not  the  debt 
and  costs  paid  to  the  holders  of  the  bottomry  bond;  and  that  the  loss 
would  be  total  or  partial  as  the  aggregate  of  these  exceeded  or  fell 
short  of  the  value  of  the  cargo  when  delivered  at  the  port  of  discharge. 
Rosetto  v.  Gurney  (nt  supra),  11  (J.  B.  176. —It  is  to  be  observed 
that  it  is  here  treated  as  settled  law  that  the  amount  of  the  original 
freight  is  not  to  be  deducted  in  the  calculation.  This  is  consistent 
with  the  decision  of  Lord  Mansfield  in  Baillie  v.  Mondigliani,  Mar- 
shal'i,  3d  ed.  p.  736,  where  Lord  Mansfield  said  that  "  the  under- 
writers on  cargo  have  nothing  to  do  with  the  freight."  The  actual 
question  in  Baillie  v.  Mondigliani  was  whether  the  insurers  were 
liable  to  the  charge  of  pro  rata  freight  paid,  on  transshipment,  to  the 
owners  of  the  original  ship.  But,  notwithstanding  a  nisi  prius  case 
of  Boyfield  v.  Broirn,  reported  in  2  Str.  1065,  it  appears  well  settled  in 
English  law,  that  the  original  freight  if  earned  is  not  to  be  taken  into 
account  as  diminishing  the  value  of  the  goods,  upon  the  question 
whether  they  can  be  practically  carried  in  a  marketable  state  to 
their  destination.  Although  it  appears  from  the  report  to  Boyfield  v. 
Brown  that  subsequently  to  that  determination  the  London  under- 
writers introduced  the  memorandum  "corn,  &c,  warranted  free  from 
average  unless  general  or  the  ship  be  stranded,"  that  case  must  now 
be  deemed  to  be  overruled  by  the  determination  in  numerous  cases. 
See  Arnold,  5th  ed.   p.   730. 

Where  the  cost  of  raising  a  sunken  ship  would  be  contributed  out  of 
general  average  by  ship  and  cargo,  the  contribution  by  cargo  must  be 
taken  account  of  in  calculating,  as  between  owner  and  underwriters  on 
ship,  the  cost  of  repair,  in  order  to  determine  whether  there  is  a  con- 
structive total  loss  of  the  ship.  Kemp  v.  HaUiday  (Ex.  Ch.  from 
Q.  B.  1866),  L.  R.,  1  Q.  B.  520  ;  35  L.  J.  Q.  B.  156. 

Insurance  for  a  voyage  from  Moulmein  to  Madras  on  a  cargo  of  teak 
and  other  timber  of  great  specific  gravity:  also  on  disbursements. 
The  ship  grounded  in  the  tidal  river  going  out  of  port,  and  became  a 
wreck;  and  notice  of  abandonment  was  given  on  the  policies.  The 
captain  made  no  effort  to  save  the  cargo:  but  a  large  part  was  ulti- 
mately saved.  Held,  that  the  cargo  was  never  in  such  imminent  danger 
as  to  justify  the  abandonment;  but  that  there  was  a  total  loss  on  the 
"  disbursements,"  — that  is  to  say,  advances  made  b}'  the  charterer  to 
the  captain  to  be  paid  out  of  the  freight  to  be  earned  on  the  arrival  of 
the  vessel  at  Madras.  Ourrie  v.  Bombay  Native  Insurance  Co.  (1869), 
L.  R.,  3  P.  C.  72  :  39  L.  J.  P.  C.  1. 


36  ABANDONMENT. 


Nos.  2,  3,  4. — Allen  v.  Sugrue,  &,c.  —  Notes. 


AMERICAN  NOTES. 

The  American  rule  is  that  a  vessel  damaged  more  than  half  her  value  may 
be  abandoned  as  for  total  loss.  Abbott  v.  Broome,  1  Caines  (New  York), 
202;  2  Am.  Dec.  187  ;  Hyde  v.  Louisiana  Stale  Ins.  Co.,  2  Martin,  n.  s.  410; 
14  Am.  Dec.  196;  Taberx.  China  Ins.  Co.,  131  Mass.  248  ;  Deblois  v.  Ocean 
Ins.  Co.,  16  Pickering  (Mass.),  303  ;  28  Am.  Dec.  245;  Cohen  v.  Charleston  F. 
§'  M.  Ins.  Co.,  Dudley  Law  Rep.  (So.  Car.),  31  Am.  Dec.  549  ;  Wood  v. 
Lincoln  §■<:.,  Ins.  Co.,  6  Mass.  479 ;  4  Am.  Dec.  163 ;  Bradlie  v.  Maryland  Ins. 
Co.,  12  Peters  (U.  S.  Sup.  Ct.),  378.  So  mere  stranding  does  not  justify 
abandonment  of  the  ship.  Bosley  v.  Chesapeake  Lis.  Co.,  3  Gill  &  Johnson 
(Maryland),  450 ;  22  Am.  Dec.  337.  See  Copelin  v.  Phoznix  Lis.  Co.,  46 
Missouri,  211;  2  Am.  Rep.  504;  Howland  v.  Marine  Ins.  Co.,  2  Cranch  Circ. 
Ct.  (U.  S.)  474.  Nor  of  the  cargo.  Hubbell  v.  Gi.  West.  Ins.  Co.,  74  New 
York,  246  ;   Thwing  v.  Washington  Ins.  Co.,  10  Gray,  457. 

An  instructive  case  of  constructive  total  loss  is  Snow  v.  Union  Mat.  Mar. 
Ins.  Co.,  119  Mass.  592;  20  Am.  Rep.  349;  where  it  appeared  that  the 
insured  vessel,  being  jammed  fast  in  the  ice  of  the  Arctic  Ocean,  with  no 
open  water  in  sight,  aud  drifting  northward  with  the  current,  her  officers  and 
crew  finding  it  impossible  to  extricate  her  left  her  and  took  to  the  boats,  and 
succeeded  after  three  days  in  reaching  the  whaling  fleet  fifty  miles  south. 
Ten  days  afterward,  by  a  change  of  wind  and  current,  the  ice  loosened,  and 
the  vessel  was  brought  out  by  the  master  and  crew  of  another  vessel  and  held 
by  them  for  salvage  ;  but  the  master  of  the  insured  vessel,  whose  crew  had 
become  scattered  and  some  of  whom  had  started  homeward,  was  unable  to 
obtain  a  sufficient  crew  or  regain  possession  of  the  vessel  so  as  to  pursue  the 
voyage  for  which  she  was  employed  and  for  which  she  was  insured,  and  she 
was  brought  by  the  salvors  to  San  Francisco,  and  before  her  arrival  there  was 
abandoned  by  the  owners  to  the  underwriters.  Held,  a  constructive  total  loss 
and  a  valid  abandonment. 

In  New  Brunswick,  it  is  held  that  where  the  expense  of  repair  would 
exceed  the  value  of  the  vessel  when  repaired,  there  is  a  constructive  total  loss. 
Gerow  v.  Providence  Washington  Ins.  Co.,  28  New  Br.  435. 

Where  the  goods  saved  do  not  amount  to  half  the  value  of  the  goods 
insured,  there  may  be  an  abandonment  as  for  total  loss.  Gardiner  v.  Smith, 
1  Johnson's  Cases  (New  York),  141.  The  notice  must  make  this  claim  dis- 
tinctly.    McConochie  v.  Sun  M.  Ins.  Co.,  26  New  York,  477. 

So  where  most  of  the  cargo  was  taken  by  pirates,  and  the  vessel  was  so 
weakened  by  bad  weather  that  the  expense  would  exceed  the  benefit  of  the 
voyage.  Gilfert  v.  Hallett,  2  Johnson's  Cases  (New  York),  296.  So  where 
the  insurers  refused  to  accept  abandonment,  but  subsequently  recovei'ed  some 
of  the  cargo.  Wallerstein  v.  Columbian  Ins.  Co.,  44  New  York,  204;  4  Am. 
Rep.  664. 

But  if  the  policy  insures  against  "actual  total  loss  only,"  there  is  not  a 
total  loss  within  the  meaning  of  the  policy  if  the  vessel  can  be  repaired  and 
put  afloat  at  any  expense.  Murray  v.  Hatch,  6  Mass.  465,  followed  in  Carr  v. 
Security  Ins.  Co.,  109  New  York,  504. 


SECT.  II.  —  WHERE   NECESSARY.  37 

No.  5.  —  Fleming  v.  Smith. 

Section  II.  —  Where  Abandonment  is  necessary  in  order  to 
claim  Total  Loss. 

No.  5.  — FLEMING   v.   SMITH. 

(H.  L.,    ON   APPEAL    FROM  SCOTLAND,    1846.) 
RULE. 

Notice  of  abandonment  is  necessary  in  order  to  convert 
a  constructive  into  an  absolute  total  loss. 

Where  the  thing  insured  exists  in  specie,  and  is  safe  in 
fche  possession  of  .the  assured  at  the  termination  of  the  risk, 
there  is  no  actual  total  loss. 

A  ship  insured  on  a  valued  time  policy,  being  damaged 
by  perils  insured  against,  is  repaired  by  the  captain  by 
means  of  money  borrowed  on  bottomry.  The  circum- 
stances are  duly  communicated  to  the  owners,  who  do  not 
give  notice  of  abandonment  for  some  months,  nor  until 
some  days  after  the  ship  has  arrived  at  home,  and  the 
owners  have  taken  possession.  Ultimately,  the  ship  was 
sold  by  the  bottomry  creditor  for  much  less  than  the 
amount  of  the  bond.  Held,  that  there  was  not  a  total 
loss ;  and  that  the  abandonment,  so  long  after  notice  of 
the  facts,  was  nugatory.  Further  (per  Lord  Campbell), 
that  the  taking  possession  of  the  ship  with  full  knowledge 
of  the  facts  was  an  election  to  treat  the  loss  as  partial. 

Fleming  v.  Smith. 

1  H.  L.  C.  513. 

This  was  an  appeal  from  the  Court  of  Session  in  Scotland.  The 
appellants  claimed  as  on  a  total  loss  under  a  time  policy  on  ship 
for  twelve  months,  from  August,  1841,  valued  at  £6,000.  The 
respondents,  underwriters,  insisted  that  they  were  only  liable  for  a 
partial  loss. 

The  ship,  in  the  month  of  May,  1842,  encountered  tempestuous 
weather  and  was  driven  into  the  Mauritius.  After  survey  the 
captain  wrote  to  the  owners  stating  the  facts,  and  discussing  the 


38  ABANDONMENT. 


No.  5.  —  Fleming  v.  Smith. 


question  of  abandonment.  He  subsequently  wrote  advising  that 
the  ship  should  be  repaired,  and  proposing  to  raise  money  on 
bottomry.  Further  correspondence  apprised  them  of  the  amount 
which  would  be  required  ;  and  on  the  3d  of  December,  with  full 
knowledge  of  the  facts,  as  appears  from  the  letters  quoted  in  the 
judgment  of  the  Lord  Chancellor,  they  write  to  the  captain,  giving 
him  full  discretion  to  act  as  he  thought  best.  The  ship  arrived  in 
London  on  the  27th  of  March,  1843,  and  on  the  30th  of  that  month 
they  gave  the  underwriters  formal  notice  of  abandonment. 

After  argument,  the  learned  lords  present  gave  their  opinions  as 
follows  :  — 

The  Lord  Chancellor  (Lord  Cottenham).  —  It  appears  to  me 
that  in  this  case  there  are  special  grounds  shown  upon  the  corres- 
pondence which  are  sufficient  to  dispose  of  the  questions,  without 
entering  into  any  discussion  as  to  many  of  the  points  which  have 
been  raised  at  the  bar,  particularly  as  to  that  question  which  has 
arisen  with  respect  to  the  formal  notice  of  abandonment,  about 
which  there  is  a  confusion  existing,  arising,  as  I  believe,  more  from 
the  misuse  of  terms  than  from  any  real  difference  in  the  cases. 
But  at  all  events,  in  this  case  it  is  admitted  on  all  hands,  whether 
the  parties  were  bound  to  give  a  formal  notice. of  abandonment  or 
not,  that  when  the  facts  came  to  their  knowledge  in  this  country, 
they  were  sufficiently  informed  of  what  had  taken  place  to  enable 
them,  if  they  thought  proper,  to  take  upon  themselves  the  chance 
of  the  benefit  of  retaining  the  ownership  of  the  property,  instead  of 
taking  the  sum  which  was  secured  to  them  by  the  policy  effected 
with  the  underwriters  upon  the  vessel ;  and  if  they  acted  upon 
that  opportunity  of  election,  they  surely  cannot  afterwards  turn 
round  and  go  against  the  underwriters  as  for  a  total  loss.  If  there 
was  any  necessity  for  a  formal  abandonment,  and  with  a  full 
knowledge  of  the  facts  they  did  not  make  that  formal  abandon- 
ment, but  took  the  property  instead,  they  could  not  afterwards 
take  the  benefit  of  the  policy,  as  if  there  had  been  a  formal  aban- 
donment. If,  on  the  other  hand,  there  was  no  necessity  for  a 
formal  abandonment,  still,  if  they  chose  to  lie  by  and  allow  things 
to  go  mi  as  they  did,  they  could  not  afterwards,  upon  a  change  of 
circumstances,  or  in  consequence  of  a  better  calculation,  turn 
round  and  say  to  the  underwriters,  "Now  we  will  give  you  up  this 
property,  because  we  find  wTe  cannot  turn  it  to  the  advantage  which 
we  expected."   The  question  really  turns  upon  what  the  information 


SECT.  II.  —  WHERE    NECESSARY.  39 


No.  5.  —  Fleming  v.  Smith. 


was  which  was  sent  to  them,  as  to  the  occurrences  that  had  taken 
place  abroad,  and  what  their  conduct  was  upon  that  information 
coming  to  them.  Now  the  first  communication  they  had  may  per- 
haps not  have  been  sufficient  to  enable  them  to  come  to  any  con- 
clusion ;  they  knew  that  misfortune  had  occurred  to  the  vessel, 
and  they  knew  that  expenses  had  been  incurred  in  respect  of  re- 
pairing the  vessel;  but  they  did  not  know  to  what  extent.  But 
there  is  a  letter  which  they  received  afterwards,  which  seems  to 
me  to  decide  the  question.  That  letter  is  written  by  Hunter, 
Arbuthnot  and  Company,  at  the  Mauritius,  and  it  is  dated  the 
16th  of  July,  1842,  and  was  received  in  this  country  on  the  13th 
November.  In  that  letter  it  is  stated  that  "  Captain  Elder  is 
naturally  anxious  to  follow  his  instructions,  and  proceed,  when  the 
ship  is  repaired,  to  Bombay  ;  for  this  purpose  he  has  advertised 
for  the  loan  of  about  $20,000,  to  be  secured  by  a  bottomry  bond  on 
the  ship,  which  would  proceed  to  Bombay  in  the  prosecution  of 
the  voyage.  No  offers,  however,  were  made  on  these  terms,  but 
parties  are  ready  to  advance  the  money  required,  provided  the  ship 
proceeds  to  England  direct  from  this.  Captain  Elder  will  there- 
fore be  obliged  to  deviate  from  his  instructions,  and  we  have 
offered  him  a  cargo  of  sugar  at  the  first  season  for  England,  at  the 
current  rate  of  freight,  which  we  think  better  for  all  parties  than 
to  go  to  Bombay  at  the  miserably  low  rate  of  freight  ruling  in 
India."  That  letter  therefore  shows  that  the  parties  were  under 
the  necessity  of  borrowing  upon  the  ship  a  sum  equal  to  $20,000. 
That  letter  they  received  on  the  13th  of  November;  and  by  a  let- 
ter of  their  own,  dated  the  3d  of  December,  1842,  they  acknowl- 
edge the  receipt  of  the  various  letters  containing  the  information 
as  to  what  extent  the  expenses  at  the  Mauritius  would  be  carried. 
Knowing,  therefore,  the  extent  to  which  the  expenses  were  likely 
to  be  carried,  they  write  acknowledging' the  receipt  of  these  letters, 
and  then  they  express  themselves  in  these  terms:  "We  observe 
the  general  measures  adopted  for  the  representatives  of  the  ship 
William  Nicol,  which  we  hope  may  turn  out  to  have  been  the  best 
in  the  unfortunate  circumstances  in  which  she  was  placed  ;  but  in 
the  absence  of  any  past  experience  on  our  part  of  the  usages  of 
your  port  in  such  cases,  we  were  rather  startled  at  the  apparent 
necessity  of  a  bottomry  bond  being  had  recourse  to  ;  but  this  may 
be  a  misapprehension  on  our  part  which  the  communication  of 
particulars  hereafter  may  clear  up." 


40  ABANDONMENT. 


No.  5.  —  Fleming  v.  Smith. 


There  is  no  doubt  that  they  were  in  possession  of  all  the  infor- 
mation necessary  to  enable  them  to  decide  as  to  the  course  they 
would  take.  In  point  of  fact,  the  answer  to  that  particular  letter 
shows  that  they  were  in  possession  of  the  information,  stating  that 
$20,000  had  been  borrowed  on  a  bottomry  bond  for  the  expense  of 
the  repairs,  and  were  well  aware  that  the  continuance  of  the  voy- 
age, for  any  purposes  of  profit,  must  be  a  doubtful  speculation. 

When  we  consider  that  these  parties  on  the  13th  of  November 
had  possession  of  this  information,  and  we  find  them  answering  in 
the  terms  I  have  already  noticed ;  and  afterwards,  on  the  7th  of 
March,  writing  to  Messrs.  K.  and  J.  Anderson,  London,  in  the 
terms  I  am  about  to  read,  there  can  be  no  doubt  that  they  pos- 
sessed all  the  knowledge  necessary  for  them  to  determine  whether 
they  would  or  would  not  abandon  the  vessel.  They  write  thus: 
"  From  the  advices  last  received  by  us  from  the  agents  of  the  ship 
William  Nicol,  at  Mauritius,  it  was  expected  that  she  would  be 
ready  to  leave  that  place  with  a  cargo  of  sugar  for  London  about 
the  20th  December ;  and  as  she  may,  therefore,  be  looked  for 
shortly,  we  enclose  a  few  lines  for  Captain  Elder,  requesting  him 
to  follow  your  directions  as  to  the  dock  of  his  discharge,  to  which 
please  attend,  after  fixing  with  Mr.  J.  D.  Nicol  what  dock  it  will 
be  most  advisable  to  send  him  to  for  that  purpose." 

Whether  the  fact  of  a  total  loss,  as  it  is  called,  or  such  damage 
as  would  exceed  the  value  of  the  ship  to  repair,  was  incurred, 
would,  or  would  not,  make  the  captain  the  agent  of  the  under- 
writers, or  the  agent  for  all  the  parties,  is  a  matter  which  I  do  not 
think  it  necessary  at  present  to  advert  to,  because  it  is  quite  clear, 
even  if  it  was  so,  that  it  was  quite  competent  for  the  owners  to 
continue  the  employment  of  the  captain.  If  they  thought  proper 
to  say,  "  We  do  not  treat  this  as  a  total  loss  ;  we  do  not  treat  you 
as  the  general  agent  in  this  matter,  but  we  treat  you  as  the  person 
having  our  authority  over  this  property  ; "  and  if  the  facts  had 
sufficiently  come  to  their  knowledge  of  what  he  was  doing,  and 
notwithstanding  that,  they  think  proper  to  take  the  property  under 
their  own  direction,  and  to  recognize  his  acts,  can  they  afterwards, 
when  a  considerable  time  has  elapsed,  and  the  vessel  has  made  a 
different  voyage,  and  obtained  different  freight  from  what  they 
expected,  turn  round  and  say, —  "We  no  longer  consider  this  prop- 
erty as  ours,  but  we  will  go  against  the  underwriters  as  for  a  total 
loss  "  ?     It  appears  to  me  to  be  not  only  contrary  to  the  common 


SECT.  II. — WHERE   NECESSARY.  41 

No.  5.  —  Fleming  v.  Smith. 

principles  of  justice,  but  also  contrary  to  all  the  authorities  which 
have  been  referred  to,  that  they  should  do  so.  Nothing  has  been 
cited  at  the  bar  which  can  alter  that  view  of  the  case,  because 
when  it  is  said  that  they  had  not  the  necessary  information  to 
enable  them  to  come  to  the  conclusion  of  whether  they  would  treat 
it  as  a  total  loss  or  not,  and  when  it  is  said  that  they  were  not 
aware  of  what  species  of  vessel  it  would  become  in  consequence  of 
the  repairs  to  be  done,  so  as  to  enable  them  to  elect,  still,  if  they 
thought  proper  to  employ  the  captain  as  their  agent  in  causing  the 
repairs  to  be  done,  whether  he  acted  judiciously  or  not,  it  is  for 
them  to  suffer  the  loss,  and  any  want  of  judgment  in  their  agent 
they  must  take  the  consequence  of,  and  it  is  not  to  be  visited  upon 
the  underwriters.  Upon  these  grounds,  my  Lords,  it  appears  to 
me  that  the  judgment  of  the  court  below  must  be  affirmed. 

Lord  Brougham  fully  concurred,  and  thought  that  the  judgment 
should  be  affirmed  with  costs. 

Lord  Campbell.  —  T  think  that  the  judgment  of  the  court  below 
should  be  affirmed  on  both  the  grounds  on  which  that  court  pro- 
ceeded, namely,  "  in  respect  that  the  pursuers  were  bound  and 
failed  to  abandon  in  due  time,"  and  also  that "  they  treated  the  loss 
as  partial." 

A  constructive  total  loss  is  a  good  ground  for  abandoning,  but  in 
deciding  on  the  circumstances  which  constitute  a  constructive  total 
loss,  which  is  as  good  a  term  as  a  contingent  total  loss,  the  reasons 
which  govern  the  conduct  of  prudent  uninsured  owners  must  be 
considered.  If  a  prudent  person,  uninsured,  would  not  have  re- 
paired the  vessel,  but  would  have  sold  it  to  be  broken  up,  that 
amounts  to  a  total  loss.  Then  the  question  arises,  what  the  assured 
is  bound  to  do  under  such  circumstances,  in  order  to  entitle  him- 
self to  claim  as  for  a  total  loss.  The  ship  was  not  submerged  or 
destroyed ;  it  remained  in  the  form  of  a  ship,  capable  of  being 
repaired,  and  it  was  for  the  captain  to  determine  whether  it  should 
be  repaired  or  not.  Whether  it  should  be  repaired  or  not  depended 
on  the  price  of  labour,  the  cost  of  materials,  the  rate  at  which  money 
could  be  borrowed,  and  on  the  probable  profits  to  be  obtained  from 
the  employment  of  the  ship  after  such  repairs  should  have  been 
executed.  Under  these  circumstances  the  question  arises,  whether, 
when  the  owners  of  a  ship  so  insured  receive  intelligence  that  the 
ship  is  capable  of  being  repaired,  and  that  it  is  lying  in  port,  they 
can  claim  as  for  a  total  loss,  without  giving  notice  of  abandon- 


42  ABANDONMENT. 


No.  5.  —  Fleming  v.  Smith. 


inent  ?  My  opinion  is  that  they  cannot  do  so.  According  to  all 
the  old  authorities,  a  constructive  total  loss  can  only  entitle  the 
owners  to  recover  as  for  an  actual  total  loss,  by  a  notice  of  aban- 
donment ;  for  though,  in  the  judgment  of  the  assured,  it  may  be  bet- 
ter not  to  repair  the  vessel,  the  underwriters  may,  with  different 
means,  give  directions  to  repair,  or  may  direct,  and  are  entitled  t<> 
direct,  how  the  wreck  is  to  be  disposed  of.  It  would  be  an  ex- 
treme hardship  for  them  to  be  called  on  to  pay  as  for  a  total  loss, 
without  having  the  opportunity  of  making  the  most  of  the  ship  in 
its  disabled  state.  The  law,  therefore,  requires  that  notice  shall 
be  given,  in  order  to  convert  a  constructive  into  an  absolute  total 
loss. 

Then  we  come  to  the  cases  of  Cambridge  v.  Andcrdon  (1  Car.  & 
P.  213)  and  Boux  v.  Salvador  (3  Biug.  N.  C.  266).  The  Court  of 
King's  Bench  held,  in  Cambridge  v.  Anderdon,  without  overturning 
the  old  authorities,  that,  in  the  peculiar  circumstances  of  that  case, 
a  notice  of  abandonment  was  not  necessary.  But  why  ?  Because, 
coming  down  the  St.  Lawrence,  the  ship  met  with  a  serious  misfor- 
tune, and  the  captain,  after  having  taken  the  best  advice,  thinking 
it  not  worth  repairing,  sold  it  at  once,  and  conveyed  a  good  title  to 
the  purchaser.  The  owners  received  intelligence  of  that  sale  at  the 
same  moment  that  they  learned  the  injury  which  had  happened  to 
the  vessel.  In  such  circumstances  there  was  nothing  to  abandon. 
The  ship  was  gone ;  the  underwriters  could  not  have  taken  posses- 
sion of  it,  for  it  was  lawfully  transferred  to  the  purchasers. 

Then  comes  the  case  of  lloux  v.  Salvador,  in  which  Lord  Chief 
Justice  Tindal  held  that  notice  of  abandonment  was  necessary. 
There  the  hides  were  so  injured  that  they  ceased  to  exist  as  hides 
before  reaching  the  port  of  destination  ;  so  that  though  the  sub- 
stance of  something  remained,  the  substance  of  what  had  been 
insured  was  destroyed.  But  here  the  ship  existed,  was  repaired, 
and  brought  home  a  cargo  to  England.  When  the  assured  heard, 
in  November,  the  facts  of  the  case,  it  was  imperative  on  them,  if 
they  meant  to  turn  a  partial  into  a  total  loss,  to  give  notice  of 
abandonment,  so  that  the  underwriters  should  have  the  opportunity 
of  dealing  as  they  pleased  with  the  property. 

Was  there  any  notice  of  abandonment?  There  was  ;  but  not  till 
the  30th  March,  1843.  The  ship  had  returned  on  the  27th  of 
March,  and,  at  that  time,  the  assured  were  fully  aware  of  all  the 
facts  of  the  case. 


SECT.  II.  —  WHERE   NECESSARY.  43 


No.  5.  —  Fleming  v.  Smith.  —  Notes. 


Under  all  these  circumstances,  I  think  that  the  first  ground  alone 
would  have  been  .sutticient  for  the  judgment. 

As  to  the  second  ground,  that  here  the  assured  had  elected,  I 
think  that  equally  conclusive  against  them.  Not  only  had  they 
not  given  notice  to  abandon,  but  they  had  taken  steps  by  which 
they  chose  to  appear  as  treating  this  property  as  still  belonging  to 
them.  They  did  that  which  amounted  to  an  intimation  of  their 
intention  of  coming  upon  the  underwriters  for  a  partial  loss,  and 
taking  all  the  advantage  which  might  arise  from  the  employment 
of  the  ship. 

It.  is  not  necessary  to  give  any  opinion  as  to  the  general  power  of 
the  master  under  such  circumstances  as  exist  in  this  case ;  but  I 
must  hear  a  great  deal  of  argument  before  I  determine  that  where  he 
acts  bond  fide  for  the  advantage  of  the  owners,  he  has  not  authority, 
by  so  doing,  to  bind  them.  In  this  case  he  thought  he  was  doing 
the  best  for  the  interests  of  those  who  employed  him  ;  he  thought 
he  was  doing  the  best  for  all  parties  concerned ;  but  he  was  still 
the  agent  of  the  owners,  and  it  would  be  dangerous  to  say  that  his 
authority,  as  their  agent,  might  be  questioned  and  contradicted  by 
afterwards  showing  that  in  fact  what  he  did  would  not  be  for  their 
interests. 

In  this  case  his  authority  was  adopted  in  this  country ;  for  in 
the  month  of  November,  1842,  the  owners  knew  that  he  was  repair- 
ing the  ship,  and  on  their  account,  and  was  to  freight  it  from  the 
Mauritius  home,  and  that  they  were  to  have  the  profits  arising 
from  such  freight.  Are  they  to  be  allowed,  after  this,  to  revoke  his 
authority  ?  No ;  they  have  acquiesced  in  all  that  he  has  done  as 
conformable  to  his  authority,  or  if  he  did  not  already  possess  that 
authority,  they  created  it  by  their  adoption  of  his  acts.  They 
treated  this  loss  as  a  partial  loss  till  the  30th  of  March,  1843,  and 
after  that  they  cannot  be  allowed,  for  the  first  time,  to  adopt  another 
line  of  conduct,  and  to  treat  it  as  a  total  loss. 

The  judgment  of  the  Court  of  Sessions  in  favour  of  the  respon- 
dents (defenders)  was  therefore  affirmed  with  costs. 


ENGLISH   NOTES. 


The  principle  of  the  ruling  case  is  involved  in  the  older  English  cases 
of  Tunnov.  Edwards  (K.  B.  1810),  12  East,  488,  and  Martin  v.  Crockett 
(K.  B.  1811),  14  East,  465.  The  latter  of  these  cases,  where  Lord 
Ellenborouoh,  at  the  trial,  directed  a  nonsuit,  and  presided  in  the 


44  ABANDONMENT. 


No.  5.  —  Fleming  v.  Smith.  —  Notes. 


court  in  banc  which  confirmed  the  direction,  must  he  read  subject  to 
the  observation  that  Lord  Ellenborough  held  too  strict  views  as  to 
the  formality  of  a  notice  of  abandonment.  The  same  observation 
applies  to  his  ruling  in  Parmeter  v.  Todhunter  (N.  P.  1808),  1  Camp. 
541.  See  the  judgment  of  the  Privy  Council  in  Currie  v.  Bombay,  &c. 
Co.  (the  same  case  as  that  cited  on  p.  35,  ante)  1869,  L.  P.,  3  P.  C. 
72,  78  ;   39  L.  J.  P.  C.  1. 

The  second  paragraph  of  the  rule  is  illustrated  by  the  case  of  Par- 
sons v.  Scott  (1810),  2  Taunt.  363,  cited  p.  33,  ante.  There  was  in 
that  case  a  notice  of  abandonment,  and  it  was  held  that,  the  owners 
being  legally  entitled  to  the  possession  notwithstanding  an  illegal 
claim,  there  was  neither  actual  nor  constructive  total  loss. 

Insurance  on  freight  on  voyage  from  Pernambuco  to  London.  On 
leaving  Pernambuco  in  June,  1839,  the  ship  struck  on  a  rock  and  put 
back.  The  master  repaired  by  money  borrowed  on  bottomry.  The 
repairs  proved  very  expensive;  and  on  30th  December  the  owners 
(plaintiffs),  on  hearing  the  extent  of  the  expense,  gave  notice  of  aban- 
donment both  of  ship  and  freight.  The  ship  arrived,  and  the  freight 
was  duly  paid  to  the  holder  of  the  bottomry  bond.  Held,  that  this  was  in 
law  a  payment  to  the  shipowner,  so  that  there  was  no  actual  total  loss; 
and  that  the  owner  was  bound  by  the  election  of  the  master  to  repair, 
and  could  not  therefore  recover  as  for  a  constructive  total  loss.  Benson 
v.  Chapman  (H.  L.  1849),  2  H.  L.  Cas.  696  (reversing  s.  c.  in  Court 
of  Common  Pleas,  6  Man.  &  Gra.  792). 

See,  also,  as  a  case  in  which  the  ship  was  sold  by  agents  of  the  owners 
without  giving  due  notice  of  abandonment,  Kaltenback  v.  Mackenzie 
(C.  A.  1878),  3  C.  P.  D.  467;  48  L.  J.  C.  P.  9  (cited  under  Nos.  8 
&  9,  jjost). 

Where  there  has  been  no  abandonment,  and  a  portion  of  the  property 
is  ultimately  restored,  the  loss  ceases  to  be  a  total  loss;  and  all  that  is 
restored  is  restored  for  the  benefit  of  the  assured,  not  of  the  under- 
writers. So  where  a  consignment  of  goods  insured  in  a  valued  policy 
had  been  seized  at  the  port  of  destination,  sold  there  at  a  profit,  and 
part  of  the  proceeds  restored;  those  proceeds  were  treated  as  represent- 
ing an  aliquot  part  of  the  goods,  and  the  assured,  not  having  abandoned, 
was  held  entitled  to  recover  from  the  underwriters  an  aliquot  part  of  the 
valuation  as  representing  the  remainder  (Goldsmid  v.  Gillies,  C.  P.  1813, 
4  Taunt.  803,  applying  the  principle  of  Tunno  v.  Edwards,  supra). 

AMERICAN   NOTES. 

If  the  ship  at  the  time  of  the  offer  to  abandon,  is  in  possession  of  the 
master,  in  good  condition  and  at  full  liberty  to  proceed,  the  loss  of  the  cargo 
will  not  authorize  abandonment  of  the  ship.     Marshall  v.  Delaware  Ins.  Co.. 


SECT.  II.  —  WHERE    NECESSARY.  45 

No.  5.  —  Fleming  v.  Smith.  —  Notes. 

•1  Cranch  (U.  S.  Sup.  Ct.),  202;  nor  will  the  loss  of  the  voyage.     Alexander 
v.  Baltimore  Ins.  Co  ,  4  Cranch  (U.  S.  Sup.  Ct.),  370. 

"  Damage  of  a  vessel  to  more  than  half  her  value,  as  a  ground  of  aban- 
donment and  constructive  total  loss,  seems  now  to  be  settled  as  the  rule  of 
American  law,  conformably  to  that  of  some  of  the  maritime  States  of  Europe, 
contrary  to  the  English  rule,  which  requires  proof  of  damage  to  such  an  extent 
that  the  repairs  of  the  vessel  in  the  place  where  it  is  would  be  equal  in 
amount  to  the  value  of  the  vessel  when  repaired."  Heebner  v.  Eagle  Ins.  Co., 
10  Gray  (Mass.),  131 ;  69  Am.  Dec.  308,  by  Shaw,  Ch.  J.,  citing  Marcardier 
v.  Chesapeake  Ins.  Co.,  8  Cranch  (U.  S.  Sup.  Ct.),  39.  The  notice  in  this 
case  was  of  "having  received  information  of  the  condemnation  of  the  ship  at 
Humboldt,  California,"  and  this  was  held  to  justify  a  claim  of  total  loss. 

A  vessel  being  stranded  on  rocks  about  five  miles  from  her  return  port, 
an  offer  to  abandon  was  made  but  refused.  The  vessel  having  been  put 
afloat  and  repaired  by  the  insurers  and  by  them  brought  to  the  home  port, 
within  fifteen  days,  held,  that  the  owners  could  not  claim  a  total  loss.  Wood 
v.  Lincoln,  «.yc.  Ins.  Co.,  6  Mass.  479;  4  Am.  Dec.  163. 

Notice  of  abandonment  stated  that  the  vessel  was  found  "  irreparable 
on  survey."  It  appearing  that  she  was  so  injured  that  the  cost  of  repair, 
after  deducting  one-third  new  for  old,  would  exceed  half  her  value,  it  was 
held  a  total  loss,  the  word  "  irreparable  "  meaning  that  the  damage  was  so 
large  as  to  absolve  the  insured  from  the  duty  of  repair.  Perkins  v.  Augusta 
Ins.  Sf  B.  Co.,  10  Gray  (Mass.),  312 ;  71  Am.  Dec.  654. 

The  American  cases  agree  that  notice  of  abandonment  is  essential  to 
convert  constructive  into  actual  total  loss.  Teasdale  v.  Charleston  Ins.  Co.,  3 
Brevard  (So.  Car.),  190;  3  Am.  Dec.  705;  Gomila  v.  Hibernia  Ins.  Co.,  40 
Louisiana  Ann.  553;  Bosley  v.  Chesapeake  Ins.  Co.,  3  Gill  &  Johnson 
(Maryland),  450;  22  Am.  Dec.  337;  Thomas  v.  Rockland  Ins.  Co.,  45  Maine, 
116;  Taberv.  China  Mul.  Ins.  Co.,  131  Mass.  239;  Hubbell  v.  67.  West.  Ins. 
Co  ,  74  New  York,  246;  Am.  Ins.  Co.  v.  Francia,  9  Penn.  St.  390;  Cossman 
v.  West,  6  Russ.  &  G.  (Nova  Sc),  461. 

A  recent  case  is  Carr  v.  Security  Ins.  Co.,  109  New. York,  504.  The  insur- 
ance was  against  "  actual  total  loss  only."  The  insurers  refused  an  offer 
of  abandonment,  but  took  possession  under  a  "  rescue  clause,"  and  had  the 
vessel  got  off  and  delivered  at  a  port  named.  Held,  that  the  insurers  were 
liable  as  for  "  actual  total  loss."  The  court  observed  :  "  There  can  be,  we 
suppose,  no  doubt  that  there  may  be  an  actual  total  loss  of  a  vessel  within 
the  true  meaning  of  that  phrase  in  a  policy  of  insurance,  although  the  vessel 
remains  in  sppcie,  or  in  other  words,  there  may  be  an  actual  total  loss  accord- 
ing to  the  law  of  marine  insurance,  although  the  vessel  is  in  existence  as  such 
when  the  loss  is  claimed."  And  the  court  cite  the  case  of  capture  as  an 
example. 

The  doctrine  of  Lord  Ellenborough,  as  laid  down  in  Parmeter  v.  Todhuntcr, 
1  Campb.  541,  and  referred  to  in  the  leading  English  note  under  the  rule  now 
under  consideration,  is  cited  with  apparent  approval  by  Shaw,  Ch.  J.,  in 
Peirce  v.  Ocean  Ins  Co.,  18  Pickering  (Mass.),  83 ;  29  Am.  Dec.  567.  See 
infra. 


46  ABANDONMENT. 


No.  6  — Roux  v.  Salvador. 


"A  partial  loss  of  an  entire  cargo,  by  sea  damage,  if  amounting  to  more 
than  half,  may  under  circumstances  be  converted  into  a  technical  total  loss ; 
but  not  if  a  distinct  part  of  the  cargo  be  destroyed,  and  the  voyage  be  not 
thereby  broken  up  or  rendered  unworthy  of  being  prosecuted."  Se/on  v. 
Delaware  Ins.  Co.,  2  Washington  (Circ.  Gt.  U.  S.),  175.  See  also,  as  supporting 
the  principal  case,  Globe  Ins.  Co.  v.  Sherlock,  25  Ohio  St.  5Q. 

The  rule  of  the  principal  case  is  supported  inferentially  by  Insurance  Co. 
v.  Fogartrj,  19  Wallace  (U.  S.  Sup.  Ct.),  640 ;  Insurance  Co.  v.  Gossler,  96 
V.  S.  645. 

Section  III.  —  Total  Loss  ivithout  Abandonment. 

No  6.  —  ROUX  v.  SALVADOR. 
"(ex.  ch.  from  c.  p.  1836.) 

RULE. 

Where  by  a  peril  insured  against  the  owner  is  disabled 
from  recovering  in  specie  the  thing  insured  at  the  termina- 
tion of  the  risk,  there  is  a  total  loss,  without  the  necessity 
of  notice  of  abandonment. 

Insurance  on  hides  per  ship  A.,  from  {inter  alia)  Valpa- 
raiso to  any  port  in  France,  &c.  Hides  shipped  under 
this  policy  from  Valparaiso  to  Bordeaux  were  damaged 
by  perils  of  the  sea  and  landed  at  Rio  Janeiro,  .where  it 
was  ascertained  that  they  could  not,  by  reason  of  the 
damage,  be  sent  to  Bordeaux  in  a  merchantable  condi- 
tion. They  were  accordingly  sold  at  Rio  for  one  fourth 
of  their  value.  Held,  that  there  was  an  actual,  and  not 
merely  constructive,  total  loss  of  the  hides ;  and  that  the 
assured  might  recover  accordingly  without  having  given 
notice  of  abandonment. 

Roux  v.  Salvador. 

3  Bing.  N.  C.  266  (7  L.  J.  Exch.  328). 

Assumpsit  on  a  policy  of  assurance,  subscribed  by  the  defendant 

for  £200.     Plea,  non-assumpsit. 

By  a  special  verdict  it  was  found,  in  substance,  that 

The  policy  on  which  the  action  was  brought  was  effected  on 

goods  per  the  General  La  Fayette,  and  other  ship  or  ships,  at  and 


SECT.  III.  —  WHERE    UNNECESSARY.  47 

No.  6.  —  Roux  v.  Salvador. 

from,  among  other  ports  or  places  in  the  Pacific  Ocean,  Valparaiso, 
to  any  port  or  ports  in  France  and  the  United  Kingdom  of  Great 
Britain,  with  leave  to  touch  and  trade  at  any  place  in  America  or 
any  where  else  ;  to  effect  all  transshipments ;  and  including  the 
risk  of  craft  to  and  from  the  vessel  or  vessels.  The  usual  perils 
were  insured  against ;  and  the  policy,  which  was  for  £700,  had  the 
following  memorandum  subscribed :  "  N.  B.  Corn,  fish,  salt,  fruit, 
flour,  and  seed  are  warranted  free  from  average,  unless  general,  or 
the  ship  be  stranded.  Sugar,  tobacco,  hemp,  flax,  hides,  and  skins  are 
warranted  free  from  average  under  5  per  cent. ;  and  all  other  goods  ; 
also  the  ship  and  freight  are  warranted  free  from  average  under  3 
per  cent.,  unless  general,  or  the  ship  be  stranded."  The  policy  was 
declared  to  be  on  goods,  specie,  or  bullion,  as  interest  might  appear : 
to  pay  average  on  each  species  of  goods  by  following  landing  num- 
bers of  the  value  of  £100  each,  as  if  separately  insured.  Cocoa  and 
hides,  free  of  particular  average,  unless  the  ship  were  stranded : 
in  case  of  average  on  the  hides,  the  assurers  were  to  pay  the  ex- 
pense of  washing  and  drying  in  full. 

Under  this  policy  the  plaintiff,  on  the  6th  of  May,  1831,  caused 
to  be  shipped  on  board  the  ship  Eoxalane,  at  Valparaiso,  for  Bor- 
deaux, in  France,  1000  salted  hides,  of  the  value  of  £1117,  his 
property,  which  hides  were  intended  to  be  insured  by  the  said 
policy,  and  were  duly  declared  thereupon,  and  a  bill  of  lading  duly 
signed  by  the  captain  in  the  ordinary  form. 

On  the  13th  of  May,  1831,  the  said  ship  being  seaworthy,  witli 
the  said  1000  hides,  and  other  hides  on  board  thereof,  set  sail  from 
Valparaiso  aforesaid,  on  her  said  voyage  towards  Bordeaux.  On 
the  5th  of  June,  1831,  in  the  course  of  her  said  voyage,  the  said 
ship,  with  the  said  goods  on  board  thereof,  encountered  bad  weather 
and  sprung  a  leak,  and  it  thereby  became  necessary,  for  the  safety 
of  the  ship  and  cargo,  that  the  said  ship  should  put  into  a  port  for 
repair,  and  the  said  ship  did  accordingly  put  into  Eio  de  Janeiro, 
in  Brazil,  being  the  nearest  port,  for  repair.  On  the  7th  of  July, 
1831,  the  whole  of  her  cargo  was  there  landed;  and  it  was  then 
found,  that  the  said  hides  were  damaged  by  the  said  perils  and 
dangers  of  the  seas,  as  follows ;  that  is  to  say,  that  they  had  been 
washed  or  wetted  by  the  sea-water  which  had  entered  into  the 
vessel  through  the  said  leak,  and  also  by  the  effect  of  the  damp- 
ness produced  in  the  hold  by  the  leak,  and  in  consequence  thereof 
a  partial  fermentation  ensued,  the  progress  of  which  could  not  be 


48  ABANDONMENT. 


No.  6.  —  Roux  v.  Salvador. 


stopped  by  any  means  practicable  in  Kio  de  Janeiro ;  and,  in  con- 
sequence of  the  progressive  putrefaction  of  the  said  1000  hides,  it 
was  impossible  to  carry  them,  or  any  part  thereof,  in  a  salable 
state,  to  the  termination  of  the  voyage  for  which  they  were  insured  : 
if  it  had  been  attempted  to  take  them  to  Bordeaux,  they  would,  by 
reason  of  such  progressive  putrefaction  as  aforesaid,  have  altogether 
lost  the  character  of  hides  before  they  arrived  there.  On  the 
27th  of  August,  1831,  at  Kio  de  Janeiro,  the  said  1000  hides  in  the 
said  policy  mentioned,  according  to  the  ordinances  of  the  French 
consul-general  there,  were  sold,  by  public  auction,  for  the  gross 
sum  of  £273 :  the  same  were  bought  by  the  purchasers  for  the 
purpose  of  being  tanned,  and  were  tanned  accordingly.  The  ship 
Roxalane  being  repaired,  and  the  leak  stopped  which  was  in  her 
bottom,  she,  on  the  3d  of  October,  1831,  sailed  from  Eio  de  Janeiro 
without  the  said  hides  in  the  said  policy  mentioned,  but  with  such 
part  of  her  cargo  reloaded  on  board  as  had  not  been  sold ;  and,  in 
the  course  of  her  voyage  from  Rio  de  Janeiro  to  Bordeaux,  was 
stranded  at  the  entrance  of  the  river  Garonne,  on  the  29th  of 
December,  1831.  The  earliest  intelligence  of  the  damage,  and  of 
the  sale  of  the  said  1000  hides,  was  received  at  the  same  time  by 
Messrs.  Deveaux  and  Company,  the  agents  for  the  said  plaintiff, 
by  a  letter  from  Bordeaux. 

The  Court  of  Common  Pleas,  after  two  arguments,  having  given 
judgment  for  the  defendant  (see  1  New  Cases,  526),  the  cause  was 
removed  by  error  into  the  Exchequer  Chamber,  where  it  was  argued 
in  Easter  vacation,  1836,  by  Maule  for  the  plaintiff,  and  the  Attor- 
ney-General for  the  defendant. 

Maule  for  the  plaintiff. 

First,  there  has  been  such  a  stranding  of  the  ship  as  to  entitle 
the  plaintiff  to  claim  and  recover  an  average  loss.  The  condi- 
tion in  the  policy  must  be  taken  strictly,  and  the  insurer  having 
consented  to  abide  by  it  without  qualification,  it  is  immaterial 
whether  the  stranding  was  connected  with  the  loss  or  not.  Thus  in 
Burnett  v.  Kensington,  7  T.  R.  210,  upon  a  similar  condition,  the 
ship  having  been  stranded  in  the  course  of  the  voyage,  the  under- 
writers were  held  liable  for  an  average  loss  arising  from  the  perils 
of  the  seas,  though  no  part  of  the  loss  arose  from  the  act  of  strand- 
ing; and  so  strictly  has  such  a  condition  been  construed,  that  a 
loss  occasioned  by  the  stranding  of  a  lighter  in  conveying  goods 
from  the  ship  has  been   held  not  to  be  a  stranding  of  the  ship 


SECT.  III.  —  WHERE   UNNECESSARY.  49 

No.  6.  —  Koux  v.  Salvador. 

within  the  meaning  of  the  condition  :  Hoffman  v.  Marshall,  2  New 
Cases,  383. 

Secondly,  there  was  a  total  loss  of  such  a  nature  as,  whether 
actually  or  only  constructively  total,  to  render  unnecessary  a  notice 
of  abandonment. 

Such  notice  was  unnecessary,  because,  notwithstanding  a  por- 
tion of  the  goods  remained  in  an  altered  shape,  upon  the  sale  cf 
them  the  adventure  was  at  an  end. 

The  court  below,  in  deciding  that  notice  of  abandonment  was 
necessary,  relied  mainly  on  Mitchell  v.  Edie,  1  T.  E.  608,  Allwood  v. 
Henckell,  Park  Ins.  280,  and  Hodgson  v.  Blackiston,  Park  Ins.  281,  n. 
In  the  first  two  of  these  cases  the  sale  was  not  rendered  necessary 
by  perils  insured  against ;  and  in  neither  of  them  was  the  state  of 
circumstances  before  the  sale  such  as  to  make  the  prosecution  of 
the  adventure  impossible,  and  to  amount  to  a  total  loss,  indepen- 
dently of  the  assured  choosing  to  treat  it  as  such ;  consequently,  if 
there  had  been  no  sale,  a  notice  of  abandonment  would  clearly 
have  been  necessary.  In  the  third  of  those  cases  it  is  not  stated 
what  was  the  nature  of  the  loss ;  the  report  only  states  that  notice 
of  abandonment  was  held  necessary,  though  the  ship  and  cargo  had 
been  sold  and  converted  into  money,  when  the  notice  of  the  loss 
was  received.  It,  therefore,  only  amounts  to  an  authority  that  the 
sale  of  the  ship  and  cargo  does  not  of  itself  render  unnecessary  a 
notice  of  abandonment;  a  proposition  which  is  not  denied  by  the 
plaintiff  in  this  cause.  The  three  cases  are  all  of  them  consistent 
with  the  proposition  contended  for  by  the  plaintiff,  that  where  a 
loss  is  of  itself  total,  independently  of  the  election  of  the  assured., 
that  is,  where  the  subject  of  the  insurance  is  placed  by  the  peril 
insured  against  in  a  situation  which  renders  the  prosecution  of 
the  adventure  impossible,  notice  of  abandonment  is  not  necessary. 
The  cases  referred  to  only  establish  the  proposition,  not  incon- 
sistent with  the  preceding,  that  where  the  perils  insured  against 
have  reduced  the  subject  of  insurance  to  such  a  state  as  not  to 
render  the  adventure  impossible,  but  to  give  the  assured  a  right 
by  notice  of  abandonment  to  throw  it  upon  the  underwriters,  and 
when  the  loss,  therefore,  is  only  total  at  the  election  of  the  assured, 
and  a  notice  of  abandonment  is  necessary  to  show  that  he  elects  so 
to  treat  it,  a  sale  will  not  excuse  the  want  of  such  a  notice.  Those 
cases,  therefore,  are  not  authorities  for  the  doctrine  in  support  of 
which  they  are  cited  by  the  Court  of  Common  Pleas ;  and  the  case 

VOL.  i.  —  4 


50  ABANDONMENT. 


No.  6.  —  Eoux  v.  Salvador. 


of  Cambridge  v  Anderton,  2  B.  &  C.  691 ;  1  Car.  &  P.  215  (in  which 
Hodgson  v.  Blackiston  was  cited),  is  directly  in  point  in  favour  of  the 
plaintiff.  There,  the  ship  having  got  on  rocks,  and  experienced  per- 
sons giving  it  as  their  opinion,  that  the  expense  of  getting  off  and 
repairing  her  would  exceed  her  value  when  repaired,  the  captain 
sold  her ;  and  it  was  held  that  the  assured  might  recover  for  a  total 
loss  without  abandonment,  notwithstanding  the  purchaser  after- 
wards got  her  off  and  dispatched  her  on  a  voyage  to  England.  The 
court  below,  however,  relied  on  principle  as  well  as  on  authorities, 
and  the  reasoning  of  the  court  amounts  to  this,  that  an  abandonment 
is  necessary,  because  it  would  be  convenient  for  the  underwriter  to 
have  early  notice  of  the  intention  of  the  assured  to  call  upon  him 
in  order  that  he  may  the  better  prepare  his  defence,  or  exercise  the 
rights  belonging  to  him  as  underwriter,  with  respect  to  the  subject 
insured.  This  would  apply  to  make  a  notice  of  abandonment 
necessary  in  all  cases  whatever  of  total  loss,  and  an  early  notice  of 
claim  in  all  cases  of  partial  loss  ;  and,  indeed,  to  require  a  prompt 
notice  in  all  cases,  whether  arising  out  of  contracts  of  insurance  or 
not,  where  the  defendant  might  be  prejudiced  by  delay;  an  object 
which  the  legislature  must  be  taken  to  have  provided  for  by  the 
Statute  of  Limitations.  The  necessity  of  notice  of  abandonment, 
however,  does  not  rest  on  this  principle,  but  arises  out  of  the  elec- 
tion which  the  assured  has  in  certain  cases  to  treat  the  loss  as  an 
average  loss,  and  to  carry  on  the  adventure,  or  to  throw  the  risk  on 
the  underwriters  by  notice  of  abandonment ;  and  where  the  perils 
insured  against  have  rendered  such  an  election  impossible,  no  notice 
of  abandonment  is  necessary.  In  Read  v.  Borikam,  3  B.  &  B.  147, 
a  notice  of  abandonment  having  been  given,  which  the  court  held 
sufficient,  the  plaintiff  was  not  called  upon  to  contend  it  was  un- 
necessary :  and  in  Parry  v.  Aberdein,  9  B.  &  C.  411,  the  plaintiffs, 
having  heard  of  the  destruction  of  the  ship  before  they  heard  of 
the  subsequent  occurrences,  were  bound  to  abandon  if  they  meant 
to  claim  for  a  total  loss.  On  the  other  hand,  in  Doyle  v.  Dallas, 
1  Moo.  &  Rob.  48,  the  want  of  notice  of  abandonment  appears  to 
have  been  thought  immaterial :  in  Robertson  v.  Clarke,  1  Bingh.  445, 
where  the  ship  was  sold  and  a  total  loss  recovered,  there  does  not 
appear  to  have  been  any  notice  of  abandonment ;  in  Mullett  v.  Shed- 
den,  l:'»  East,  304,  it  is  admitted  that  abandonment  is  not  necessary 
where  goods  are  sold  by  the  Court  of  Admiralty  ;  and  in  Cologan 
v.   London   Assurance    Company,  5  M.  &  S.  447,  Abbott,  J.   says, 


SECT.  III.  —  WHEKE    UNNECESSARY.  51 

No.  6.  —  Roux  v.  Salvador. 

"  Abandon ment  excludes  any  presumption  which  might  have  arisen 
from  the  silence  of  the  assured,  that  they  meant  to  adhere  to  the 
adventure."  Here  it  is  impossible  to  suppose  the  assured  could 
mean  to  adhere  to  the  adventure,  when  he  knew  the  result  was 
.ascertained  by  a  sale  of  which  he  had  received  the  proceeds. 

Sir  J.  Campbell,  Attorney -General,  contra.  1st,  There  was  no 
stranding  for  which  the  underwriter  is  liable.  The  stranding  in- 
tended by  the  parties  must  be  a  stranding  in  the  course  of  the 
adventure.  A  stranding  before  or  after  the  adventure  is  wholly 
unconnected  with  it,  and  not  within  the  meaning  of  the  policy. 
Some  limitation  must  be  put  on  the  time  with  respect  to  which 
the  underwriters'  liability  is  to  attach  ;  and  as  the  liability  in  re- 
spect of  the  goods  commences  with  their  being  put  on  board,  so  it 
ceases  on  their  being  safely  landed. 

2dly,  This  was  not  a  total  loss  ;  for  though  the  hides  wTere  dam- 
aged, they  still  existed  as  hides  ;  were  sold  as  such  ;  and  if  tanned, 
might  have  been  carried  to  Bordeaux.  There  would  not  have 
l>een  a  total  loss,  therefore,  even  if  the  goods  had  not  been  ex- 
cepted by  the  memorandum  ;  but  being  so  excepted,  a  fortiori, 
they  could  not  be  deemed  totally  lost  so  long  as  any  of  them  re- 
mained in  specie  at  the  termination  of  the  risk,  when  they  were 
landed  at  Rio  de  Janeiro.  The  assured  cannot,  by  a  premature  sale, 
throw  on  the  underwriter  a  liability  as  for  a  total  loss.  In  Dyson 
v.  Rowcrbft,  3  B.  &  P.  474,  on  which  the  Court  of  Common  Pleas 
relied,  there  was  an  actual  total  loss  by  the  article  being  thrown 
overboard;  and  Manning  v.  Nunham,  3  Dougl.  130;  Park  Ins., 
260  ;  2  Campb.  624,  n.,  where  the  possibility  of  a  salvage  was  held 
not  to  exonerate  the  underwriter,  is  much  shaken  by  Glennie  v. 
London  Assurance  Company,  2  M.  &  S.  371,  where  the  underwriter 
was  discharged,  because  the  goods,  although  sold  for  less  than  their 
freight,  might  have  been  transmitted  to  their  destination.  In  /////// 
v.  Eoyal  Exchange  Assurance  Company,  5  M.  &  S.  47,  it  was  held 
that  a  loss  of  voyage  for  the  season  by  perils  of  the  sea  was  not  a 
ground  of  abandonment  upon  a  policy  of  goods,  with  a  clause  of 
-warranty  free  from  average,  &c,  where  the  cargo  was  in  safety, 
and  not  of  such  a  perishable  nature  as  to  make  the  loss  of  voyage 
-a  loss  of  the  commodity,  although  the  ship  were  rendered  incapable 
of  proceeding  on  the  voyage.  In  Thompson  v.  Royal  Exchange 
Assurance  Company,  16  East,  214,  where  the  ship  was  wrecked, 
i)ut  the  goods  were  brought  on  shore,  though    in  a  very  damaged 


52  ABANDONMENT. 


No.  6.  —  Roux  v.  Salvador. 


state,  so  that  they  became  unprofitable  to  the  insured,  it  was  held 
that  the  underwriters  on  the  goods,  who  were  freed  by  the  policy 
from  particular  average,  could  not  be  made  liable,  as  for  a  total  loss, 
by  a  notice  of  abandonment.  And  Lord  Ellenborough  said,  "All  the 
goods  were  got  on  shore  and  saved,  though  in  a  damaged  state. 
If  this  can  be  converted  into  a  total  loss,  by  notice  of  abandonment, 
the  clause  excepting  underwriters  from  particular  average  may 
as  well  be  struck  out  of  the  policy.  We  can  only  look  to  the  time 
when  the  loss  happened,  and  the  goods  were  landed ;  and  then  it 
was  not  a  total  loss,  however  unprofitable  they  might  afterwards 
be."  And  that  decision  is  confirmed  by  M' Andrews  v.  Vaughan, 
Park  Ins.  185.  In  Anderson  v.  Wallis,  2  M.  &  S.  240,  copper  and 
iron  was  insured  from  London  to  Quebec,  warranted  free  from 
particular  average  ;  the  ship  was  driven  into  Kinsale,  and  being 
detained  for  repairs  so  that  she  could  not  proceed  to  Quebec  that 
season,  the  iron,  which  was  greatly  damaged,  and  the  copper  were 
sold  :  but  notwithstanding  the  ship  had  lost  her  voyage,  the  loss  of 
the  goods  was  held  not  to  be  total.  So  here,  though  the  destined 
market  for  the  hides  was  lost,  the  hides  remaining  in  specie,  the 
loss  was  not  total. 

Lastly,  in  order  to  enable  the  assured  to  recover,  an  abandon- 
ment was  necessary ;  and  the  cases  relied  upon  in  argument  and 
by  the  court  below,  to  which  may  be  added,  Anderson  v.  Royal 
Exchange  Company,  7  East,  38,  are  not  outweighed  by  Cambridge 
v.  Andcrton  and  Mullett  v.  Shedden,  the  only  conflicting  deci- 
sions which  bear  upon  the  point.  The  authority  of  Cambridge  v. 
Andcrton  is  weakened  by  the  language  of  Bayley,  J.,  in  Gardener 
v.  Salvador,  1  Moo.  &  Rob.  116.  But  in  Cambridge  v.  Anderton,  as 
well  as  in  Mullett  v.  Shedden,  abandonment  was  not  necessary,  be- 
cause the  loss  was  indisputably  total.  If,  according  to  Mitchell  v. 
Edie,  Allwood  v.  Henckell,  and  Hodgson,  v.  Blackiston,  a  sale  does 
not  end  the  adventure  so  as  to  exonerate  the  assured  from  giving 
notice  of  abandonment,  neither  will  the  receipt  of  the  money,  nor 
the  intelligence  of  the  sale  coming  at  the  same  time  as  the  intelli- 
gence of  the  loss :  that  does  not  carry  the  matter  further  than  the 
sale.  Here,  the  money  produced  by  the  sale  of  the  hides  became 
vested  in  the  assured  :  he  had  a  right  to  keep  it,  and,  if  he  thought 
fit,  to  treat  the  loss  as  partial :  and  whenever  the  assured  may 
treat  a  loss  as  partial,  an  abandonment  is  necessary  to  make  it  a 
total  loss. 


SECT.  III.  —  WHERE    UNNECESSARY.  53 

No.  6.  —  Roux  v.  Salvador. 

Maule  was  heard  in  reply,  and  with  respect  to  Hunt  v.  Royal 
Exchange  Assurance  Company,  Thompson  v.  Royal  Exchange  Assur- 
ance Company,  and  Anderson  v.  Wallis,  observed,  that  the  goods 
were  not  of  such  a  nature  or  damaged  in  such  a  way  as  to  render 
it  impossible,  as  in  the  present  case,  to  forward  them  to  their 
original  destination.  Cur.  adv.  vult. 

Lord  Abinger,  C.  B.  This  was  a  writ  of  error  upon  a  judgment 
of  the  Court  of  Common  Pleas,  in  an  action  on  a  pulicy  of  insurance 
upon  goods  by  the  Roxalane  at  and  from  any  ports  or  places  in 
South  America,  to  a  port  in  France  or  the  United  Kingdom,  with 
various  liberties,  not  material  to  be  mentioned.  By  a  written 
memorandum  at  the  foot  of  the  policy,  the  insurance  was  declared 
to  be  on  hides  shipped  at  Valparaiso  free  of  average,  unless  the 
ship  should  be  stranded ;  and,  in  case  of  average  loss,  the  under- 
writers were  to  pay  the  expense  of  washing  and  drying  in  full. 
The  declaration  contains  the  usual  averments,  and  states  that  the 
hides  were  shipped  at  Valparaiso  ;  that  the  vessel  set  sail  with 
them  on  board  for  Bordeaux,  a  port  in  France ;  and  that  in  the 
course  of  the  voyage,  the  hides  became  lost  by  the  perils  of  the  sea, 
and  never  arrived  at  Bordeaux. 

The  plea  is  the  general  issue. 

It  appears  by  the  record  that  the  cause  was  tried,  and  a  special 
verdict  found,  which,  after  stating  the  facts  necessary  to  support 
those  parts  of  the  declaration  upon  which  no  question  arises,  sets 
forth  the  loss,  in  substance,  as  follows :  "  That  the  hides  of  the 
value  of  £1000  having  been  shipped  in  the  vessel,  she  set  sail  on 
her  voyage ;  in  the  progress  of  which  she  encountered  perils  of  the 
sea,  and  sprung  a  leak,  in  consequence  of  which  she  was  compelled 
to  put  into  Rio  Janeiro,  being  the  nearest  port ;  that  her  cargo  was 
taken  out  and  landed,  when  it  was  found,  as  the  fact  was,  that  the 
hides  were  damaged  by  the  perils  of  the  sea  ;  that  by  reason  of  their 
being  wetted  by  the  water  issuing  through  the  leak,  and  of  the 
consequent  dampness  of  the  hold,  they  were  undergoing  a  process 
of  fermentation,  which  could  not  be  checked ;  and  that  in  conse- 
quence of  their  progressive  putrefaction  it  was  impossible  to  carry 
them,  or  any  part  of  them,  in  a  salable  state,  to  the  termination 
of  the  voyage  ;  and  that  if  it  had  been  attempted  to  take  them  to 
Bordeaux  they  would  in  consequence  of  the  putrefaction  have  lost 
the  character  of  hides  before  their  arrival."     The  special  verdict 


54  ABANDONMENT. 


No.  6.  —  Roux  v.  Salvador. 


further  states  that  the  hides  were  in  consequence  sold  at  Rio 
Janeiro  by  order  of  the  French  consul  there,  for  the  sum  of  £270 ; 
that  they  were  purchased  to  be  tanned,  and  were  afterwards  tanned  ; 
that  the  ship,  being  repaired,  set  sail  for  Bordeaux,  and  was  stranded 
upon  entering  the  Garonne  ;  and  that  the  earliest  intelligence  of 
the  damage  and  sale  were  received  at  the  same  time  in  a  letter 
from  Bordeaux. 

The  judgment  is  entered  for  the  defendant :  to  set  aside  which 
judgment  this  writ  of  error  is  brought.  The  stranding  of  the 
vessel  upon  entering  the  river  Garonne  in  her  passage  to  Bor- 
deaux, is  introduced  into  the  special  verdict,  with  a  view  to  meet 
the  supposed  case  of  a  partial  loss :  and  it  has  been  contended, 
that  the  fact  of  stranding  being  a  condition  to  let  in  the  claim  for 
a  partial  loss,  it  is  not  material  whether  the  stranding  takes  place 
whilst  the  goods  insured  are  on  board,  or  after  they  have  been 
landed.  We  are  not  prepared  to  adopt  that  conclusion :  but  the 
view  we  take  of  this  case  renders  it  unnecessary  to  enter  into  any 
discussion  of  the  argument,  or  to  pronounce  any  opinion  upon  it. 
It  appears  from  the  report  of  the  judgment  of  the  Court  of  Com- 
mon Pleas  u] ton  this  case,  that  the  learned  judges  were  of  opinion 
that  there  was  a  constructive  total  loss,  in  case  it  had  been  fol- 
lowed by  an  abandonment  to  the  underwriters;  and  that  their 
judgment  for  the  defendant  was  grounded  upon  the  want  of  such 
abandonment. 

It  has  been  urged  before  us  in  support  <>f  the  judgment,  first, 
that  there  was  no  total  loss ;  secondly,  that  if  there  were  any  cir- 
cumstances which  might  have  amounted  to  more  than  an  average 
<»r  partial  loss,  they  were  not  such  as  without  an  abandonment 
could  have  been  converted  into  a  total  loss.  Upon  the  first  point 
if  has  been  contended,  that  even  if  these  goods  had  not  been  ex- 
cepted from  average  loss  by  the  memorandum,  unless  upon  the 
condition  of  stranding,  there  would  not  in  this  case  have  been  a 
total  loss,  and  that,  a  fortiori,  being  goods  so  expressly  excepted 
from  average  loss  by  the  memorandum,  they  could  not  become 
totally  lost  so  long  as  any  part  of  them  remained  in  specie  at  the 
termination  of  the  risk ;  that  the  risk  terminated  when  the  goods 
were  taken  out  at  Rio  de  Janeiro,  when  they  were  so  far  from  be- 
ing destroyed  by  the  perils  of  the  sea,  that  they  were  actually  sold 
as  hides,  and  were  capable  of  being  tanned. 

It   appears   to   us   that   there   is   no   ground    whatever   for   this 


SECT.  III.  —  WHERE    UNNECESSARY. 


No.  6-  —  Roux  v.  Salvador. 


assumed  distinction  between  goods  that  are  subject  to  a  partial  loss 
unconditionally,  and  goods  excepted  by  the  memorandum  from  such 
a  loss.  The  interest  which  the  assured  may  have  in  certain  cases 
bo  convert  a  partial  loss  into  a  total  loss,  may  be  a  fair  argument  to 
a  jury  upon  a  doubtful  question  of  fact  as  to  the  nature  of  the  loss 
or  the  motive  for  an  abandonment ;  and,  in  the  same  view,  that 
interest  has  been  adverted  to  occasionally  by  Judges,  where  the 
conclusions  to  be  drawn  from  facts  upon  a  special  case,  or  upon  a 
motion  for  a  new  trial,  were  open  to  discussion.  But  there  is 
neither  authority  nor  principle  for  the  distinction  in  point  of  law  ; 
whether  a  loss  be  total  or  partial  in  its  nature,  must  depend  upon 
general  principles.  The  memorandum  does  not  vary  the  rules 
upon  which  a  loss  shall  be  partial  or  total ;  it  does  no  more  than 
preclude  the  indemnity  for  an  ascertained  partial  loss,  except  on 
certain  conditions.  It  has  no  application  whatever  to  a  total  loss, 
or  to  the  principle  on  which  a  total  loss  is  to  be  ascertained. 

Dismissing  this  distinction  then,  the  argumeut  rests  upon  the 
position,  that  if,  at  the  termination  of  the  risk,  the  goods  remain  in 
specie,  however  damaged,  there  is  not  a  total  loss.  Now  this  posi- 
tion may  be  just,  if  by  the  "  termination  of  the  risk,"  is  meant  the 
arrival  of  the  goods  at  their  place  of  destination  according  to  the 
terms  of  the  policy.  But  there  is  a  fallacy  in  applying  those  words 
to  the  termination  of  the  adventure  before  that  period  by  a  peril  of 
the  sea.  The  object  of  the  policy  is  to  obtain  an  indemnity  for  any 
loss  that  the  assured  may  sustain  by  the  goods  being  prevented  by 
the  perils  of  the  sea  from  arriving  in  safety  at  the  port  of  their 
destination.  If,  by  reason  of  the  perils  insured  against,  the  goods 
do  not  so  arrive,  the  risk  may  in  one  sense  be  said  to  have  termin- 
ated at  the  moment  when  the  goods  are  finally  separated  from  the 
vessel :  whether,  upon  such  an  event,  the  loss  is  total  or  partial, 
no  doubt,  depends  upon  circumstances.  But  the  existence  of  the 
goods,  or  any  part  of  them,  in  specie,  is  neither  a  conclusive,  nor, 
in  many  cases,  a  material  circumstance  to  that  question.  If  the 
goods  are  of  an  imperishable  nature,  if  the  assured  become  pos- 
sessed or  can  have  the  control  of  them,  if  they  have  still  an  oppor- 
tunity of  sending  them  to  their  destination,  the  mere  retardation 
of  their  arrival  at  their  original  port  may  be  of  no  prejudice  to 
them  beyond  the  expense  of  re-shipment  in  another  vessel.  In 
such  a  case,  the  loss  can  be  but  a  partial  loss,  and  must  be  so 
deemed,  even  though,  the   assured  should,  for  some  real  or  sup- 


56  ABANDONMENT. 


No.  6.  —  Roux  v.  Salvador. 


posed  advantage  to  themselves,  elect  to  sell  the  goods  where  they 
have  been  landed,  instead  of  taking  measures  to  transmit  them  to 
their  original  destination.  But  if  the  goods,  once  damaged  by  the 
perils  of  the  sea.  and  necessarily  landed  before  the  termination  of 
the  voyage,  are,  by  reason  of  that  damage,  in  such  a  state,  though 
the  species  be  not  utterly  destroyed,  that  they  cannot  with  safety 
be  re-shipped  into  the  same  or  any  other  vessel  ;  if  it  be  certain 
that,  before  the  termination  of  the  original  voyage,  the  species 
itself  would  disappear,  and  the  goods  assume  a  new  form,  losing  all 
their  original  character ;  if,  though  imperishable,  they  are  in  the 
hands  of  strangers  not  under  the  control  of  the  assured;  if  by  any 
circumstance  over  which  he  has  no  control  they  can  never,  or 
within  no  assignable  period,  be  brought  to  their  original  destina- 
tion ;  in  any  of  these  cases,  the  circumstance  of  their  existing  in 
specie  at  that  forced  termination  of  the  risk,  is  of  no  importance. 
The  loss  is,  in  its  nature,  total  to  him  who  has  no  means  of  recov- 
ering his  goods,  whether  his  inability  arises  from  their  annihilation 
or  from  any  other  insuperable  obstacle.  Accordingly,  in  the  case 
of  Hunt  v.  The  Royal  Exchange  Assurance  Company,  5  M.  &  S.  47, 
which  was  cited  by  the  Attorney-General  in  support  of  his  argu- 
ment, the  judgment  of  Lord  Ellenborough  contains  a  very  impor- 
tant passage,  which  distinguishes  it  from  the  present  case.  He 
says :  "If,  indeed,  the  cargo  had  been  of  a  perishable  nature,  this 
would  not  have  been  a  case  of  retardation  only,  but  of  destruction 
of  the  thing  assured  ;"  and  further,  he  says,  "I  cannot  necessarily 
infer  that  the  flour  would  be  changed  in  quality  and  condition  by 
the  delay  from  November  to  April,  so  as  to  incur  any  material 
damage  operating  a  destruction  of  the  thing  insured."  In  the  case 
of  Anderson  v.  Wallis,  2  M.  &  S.  240,  which  was  also  relied  upon, 
the  goods  consisted  of  copper,  which  was  wholly  uninjured,  and  of 
iron,  which  was  partially  damaged;  the  assured  by  their  own  agent 
had  possession  of  them  ;  the  ship  was  capable  of  repair,  and  might 
have  prosecuted  the  voyage,  and  did,  in  four  weeks  after  the  acci- 
dent, sail  upon  another  voyage :  the  only  pretence  for  a  total  loss 
was  the  retardation  of  the  voyage  ;  upon  which  ground,  combined 
with  the  other  circumstances,  the  court  held  the  loss  not  to  be 
total.  But  it  is  clear  from  the  judgment  of  the  court,  that  if,  by 
reason  of  the  perils  of  the  sea,  the  goods  could  never  have  been 
sent  to  their  destination,  the  loss  would  have  been  held  to  be  total. 
In  like  manner  it  will  be  found  in  the  other  cases  cited  upon  this 


SECT.  III.  —  WHERE   UNNECESSARY.  57 


No.  6.  —  Roux  v.  Salvador. 


part  of  the  argument,  that  there  has  always  existed  one  or  more 
other  circumstances  in  combination  with  that  of  the  goods  existing 
in  specie,  to  induce  the  judgment  that  the  loss  was  not  total :  as  in 
Glennie  v.  The  Royal  Exchange,  2  M.  &  S.  371,  the  rice  had  arrived 
at  its  port  of  destination,  and  though  damaged,  was  delivered  to 
the  consignees,  and  in  a  salable  state  as  rice.  In  Thompson  v. 
The  Royal  Exchange,  1G  East,  214,  the  tobacco  and  sugar,  though 
damaged  by  the  perils  of  the  sea,  were  in  the  hands  of  the  owner 
at  Heligoland ;  and  as  stated  by  Lord  Ellenborough.  in  his  judg- 
ment, might  for  any  thing  that  appeared  have  been  forwarded  to 
their  port  of  destination.  In  Anderson  v.  The  Royal  Exchange 
.Assurance  Company,  7  East,  38,  the  wheat  was  partly  saved, 
was  in  the  hands  of  the  shipper  at  Waterford,  was  kiln-dried,  and 
might  have  been  forwarded  as  the  rest  of  the  cargo  was,  after  the 
same  operation,  to  its  port  of  destination  :  but  the  owner,  after 
dealing  with  it  for  some  time  as  his  own,  abandoned  it  too  late, 
even  if  he  ever  had  a  right  to  abandon  it  at  all.  In  the  case 
before  us  the  jury  have  found  that  the  hides  were  so  far  damaged 
by  a  peril  of  the  sea,  that  they  never  could  have  arrived  in  the 
form  of  hides.  By  the  process  of  fermentation  and  putrefaction, 
which  had  commenced,  a  total  destruction  of  them  before  their 
arrival  at  the  port  of  destination,  became  as  inevitable  as  if  they 
had  been  cast  into  the  sea  or  consumed  by  fire.  Their  destruction 
not  being  consummated  at  the  time  they  were  taken  out  of  the 
vessel,  they  became  in  that  state  a  salvage  for  the  benefit  of  the 
party  who  was  to  sustain  the  loss,  and  were  accordingly  sold  ;  and 
the  facts  of  the  loss  and  the  sale  were  made  known  at  the  same 
time  to  the  assured.  Neither  he  nor  the  underwriters  could  at 
that  time  exercise  any  control  over  them,  or  by  any  interference 
alter  the  consequences.  It  appears  to  us,  therefore,  that  this  was 
not  the  case  of  what  has  been  called  a  constructive  loss,  but  of  an 
absolute  total  loss  of  the  goods :  they  could  never  arrive  ;  and,  at 
the  same  moment  when  the  intelligence  of  the  loss  arrived,  all 
speculation  was  at  an  end.  It  has  indeed  been  strenuously  con- 
tended before  us,  that  the  sale  of  the  hides  whilst  they  remained 
in  specie,  rendered  abandonment  necessary  to  make  the  loss 
total ;  that  the  money  produced  at  the  sale  became  vested  in 
the  assured ;  that  he  had  an  undoubted  right  to  keep  it  if  he 
thought  proper,  and  to  treat  the  loss  as  partial ;  and  that,  wherever 
it  is  in  his  power  to  treat  the  loss  as  partial,  an  abandonment 


58  ABANDONMENT. 


No.  6.  —  Koux  v.  Salvador. 


is  necessary  to  make  it  a  total  loss.  The  assured  certainly  has 
always  an  option  to  claim  or  not;  but  his  abstaining  from  his 
right  does  not  alter  the  nature  of  it :  and  if  it  be  true  that  the 
proceeds  of  the  sale  vested  in  him,  they  would  equally  have 
done  so,  if,  instead  of  being  sold  in  specie,  the  hides  had  actually 
changed  their  form,  and  been  sold  as  glue,  or  manure,  or  ashes. 
The  argument,  therefore,  in  effect  resolves  itself  into  this  question, 
whether,  when  a  total  loss  has  taken  place  before  the  termination 
of  the  risk  insured,  with  a  salvage  of  some  portion  of  the  subject 
insured,  which  has  been  converted  into  money,  the  insured  is  bound 
t<>  abandon  before  he  can  recover  for  a  total  loss.  If  any  doubl 
should  exist  upon  this  point,  it  is  important  that  it  should  be  well 
considered  and  determined. 

The  history  of  our  own  law  furnishes  few,  if  any,  illustrations  of 
the  subject  of  abandonment  before  the  time  of  Lord  Mansfield. 
That  great  Judge  was  obliged  to  resort  to  the  aid  of  foreign  codes, 
and  to  the  opinions  of  foreign  jurists,  for  the  rules  and  principles 
which  he  laid  down  in  the  leading  cases  of  Goss  v.  Withers,  2  Burr. 
683,  and  Hamilton  v.  Mendez,  1  W.  Black.  276.  But  even  those 
principles  are,  comparatively  speaking,  of  modern  date.  The  mosl 
ancient  codes  of  the  law  maritime  when  it  was  eonsidered  as  parr 
<>f  the  law  of  nations,  contain  no  chapter  upon  assurances,  neither 
do  the  earliest  municipal  codes,  nor  the  earliest  treatises  upon 
assurances  make  any  mention  of  abandonment.  When  a  policy  of 
assurance  was  considered  in  the  nature  of  a  wager  without  refer- 
ence to  any  actual  interest  possessed  by  the  assured,  it  was  needless 
to  treat  of  abandonment.  The  code  of  Florence,  which  bears  date 
1523,  contains  no  allusion  to  that  topic.  The  decisions  of  the  rota 
of  (renoa,  at  the  time  when  that  state  was  most  eminent  for  its 
naval  power  and  commercial  enterprise,  have  been  preserved  by 
Straccha.  Amongst  them  are  found  many  cases  of  insurance  upon 
sea  risks :  not  one  of  them  turns  upon  any  question  of  abandon- 
ment, or  contains  any  allusion  to  that  subject.  The  same  author 
has  written  a  very  elaborate  treatise  upon  assurances,  but  is  equally 
silent  on  the  subject  of  abandonment.  He  has  also  preserved  in 
that  treatise  the  form  of  a  policy,  bearing  date  at  Ancona,  October 
20,  1567,  which  he  says  was  at  that  time  in  general  use  amongst 
the  states  of  Italy.  From  the  terms  of  that  policy  it  is  difficult  to 
infer  any  right  or  duty  of  abandonment.  It  contains  this  clause: 
"  Ft  si  delle  mercantie  ass  ■  mrate  intervenisse  o  fosse  intervenuto 


SECT.  III.  - — WHERE    UNNECESSARY.  59 

No.  6.  —  Roux  v.  Salvador. 

alcun  disastro  li  assecuratorij  debbono  dare  et  pagare  quelli  danari 
assecurati  al  detto  assecurato  fra  mesi  due  dal  di  ehe  in  Ancona  ne 

fosse  vera  nueva,  Et  si  pretendessero  per  ragione  alcuna  dire  in 
contrario  non  possono  esser  uditi  da  corte,  guidice,  o  magistrato 
alcimo,  si  prima  non  averanno  pagati  effectualmente  danari  con- 
tanti."  So  that  not  only  two  months  after  the  credible  news  of 
any  disaster  was  the  underwriter  bound  to  pay  a  total  loss,  but  if 
he  meant  to  contest  the  claim,  he  was  within  that  time  to  purchase 
tin'  right  of  litigation  by  first  paying  the  sum  insured.  It  was, 
however,  to  be  restored  to  him  in  the  event  of  his  success.  There 
is  also  a  clause  in  the  policy,  by  which  if  there  was  no  account  of 
the  ship  for  twelve  months,  the  underwriter  was  bound  to  pay  at 
the  end  of  that  time,  subject  to  restitution  if  the  ship  should  after- 
wards arrive  :  a  provision  wholly  inconsistent  with  any  notion  of 
abandonment.  The  same  law  probably  prevailed  at  that  period 
throughout  the  states  of  Italy.  But  when  assurances  came  to  lie 
•considered  as  contracts  of  indemnity,  and  not  as  mere  wagers,  it 
became  necessary  to  make  some  rules  for  the  conduct  of  the  parties, 
where  the  loss  was  partial,  as  well  as  to  secure  to  the  assured,  when 
it  was  total,  the  full  measure  of  his  indemnity,  and  no  more.'  The 
obligation  of  abandonment  was  the  necessary  consequence  of  con- 
fining the  object  of  the  contract  to  a  strict  indemnity.  Accordingly 
we  find  in  the  chapter  of  assurances  in  the  civil  statutes  of  Genoa 
in  1610,  the  disaster  upon  which  the  underwriter  is  bound  to  pay 
is  limited  and  defined  to  be  the  incapacity  of  the  ship  to  proceed 
within  a  month  after  she  has  been  disabled,  or  the  detention  of 
her  by  force,  and  the  compulsory  dereliction  of  her  voyage,  whereby 
she  is  forced  to  land  the  goods  insured.  In  those  cases  the  assured 
may  either  abandon  the  goods  and  demand  the  full  insurance,  or 
make  up  the  amount  of  the  loss,  and  demand  it  from  the  under- 
writers, who,  if  it  amount  to  50  per  cent...  shall  have  their  option, 
either  to  pay  that  sum  and  leave  the  goods  to  the  assured,  or  to 
pay  the  whole  and  take  the  goods.  By  the  same  law  wager  policies 
-are  prohibited  and  declared  void. 

Here,  it  is  obvious,  that  the  object  of  the  law  was  to  limit  the 
claim  of  the  assured  to  a  strict  indemnity.  The  same  principle 
will  be  found  in  the  various  codes  of  the  other  maritime  states  of 
Europe  in  which  abandonment  is  mentioned;  though  it  must  be 
admitted  that  the  rules  they  have  respectively  adopted  are  very 
different.     In  some,  abandonment  is  merely  permissive,  and  limited 


60  ABANDONMENT. 


No.  6.  —  Roux  v.  Salvador. 


to  very  few  cases.  In  others,  as  in  the  codes  of  Rotterdam  and 
Amsterdam,  abandonment  was  imperative  even  in  the  case  of  an 
absolute  total  loss.  Such  seems  to  have  been  the  law  of  France 
as  established  by  the  ordinances  of  Louis  XIV.  in  1681.  From  the 
words  of  that  code,  indeed,  it  might  be  thought  that  they  were  only 
intended  to  prohibit  it  in  all  but  the  specified  cases,  and  not  to  en- 
force it  as  a  preliminary  condition  for  recovering  an  absolute  total 
loss:  "ne  pourra  le  ddlaissement  etre  fait  qu'en  cas  de  prise,  nau- 
frage,  bris,  echouement,  arrest  de  Prince,  ou  perte  entiere  des  effets 
assurez;  et  tous  autres  dommages  ne  seront  reputez  qu'  avarie." 
Emerigon  in  his  Treatise  Des  Assurances,  c.  17,  s.  1,  remarks,  that 
abandonment  presents  to  the  mind  the  idea  of  a  thing  existing  in 
whole  or  in  part,  or  at  least  the  idea  of  a  doubtful  existence,  for  it 
appears  absurd  to  renounce  to  the  assurers  a  thing  of  which  the  abso- 
lute loss  is  already  established.  Nevertheless,  he  says,  "According 
to  our  maritime  laws,  one  may  abandon  to  the  underwriters  a  thing 
entirely  lost,  and,  however  singular  it  may  appear,  the  law  requires 
the  form  of  an  abandonment  in  the  process  of  an  action  de  delaisse- 
ment,  though  it  be  stated  that  the  goods  have  absolutely  ceased  to 
exist."  This  apparent  inconsistency  in  the  law  of  France  is  now 
removed  by  the  code  Napoleon.  Under  the  title  dn  Delaissement 
in  the  Code  de  Commerce,  there  are  seven  cases  enumerated,  in 
which  abandonment  is  permitted,  amongst  which  the  "perte  entilre 
des  effets  assures  "  is  not  to  be  found.  There  is,  indeed,  a  power 
given  to  abandon  in  case  the  loss  or  damage  of  the  goods  insured 
amounts  to  three-fourths ;  but  the  necessity  of  making  an  aban- 
donment in  case  of  the  entire  loss,  seems  to  be  guarded  against 
expressly  by  the  Article  372,  which  provides,  "  that  the  abandon- 
ment shall  extend  to  nothing  but  those  effects  which  are  the  object 
of  the  assurance  and  of  the  risk." 

But  whatever  lights  might  have  been  heretofore  derived  from 
foreign  codes  and  jurists,  the  practice  of  insurance  in  England  has 
been  so  extensive,  and  the  questions  arising  upon  every  branch  of 
it  have  been  so  thoroughly  considered  and  settled,  that  we  need 
not  now  look  beyond  the  authorities  of  the  English  law  to  illus- 
trate the  principle  on  which  the  doctrine  of  abandonment  rests, 
and  the  consequences  which  result  from  it.  It  is,  indeed,  satisfac- 
tory to  know,  that  however  the  laws  of  foreign  states  upon  this 
subject  may  vary  from  each  other,  or  from  our  own,  they  are  all 
directed  to  the  common  object  of  making  the  contract  of  insurance 


SECT.  III.  —  WHERE    UNNECESSARY-  61 

No.  6.  —  Roux  v.  Salvador. 

a  contract  of  indemnity,  and  nothing  more.  Upon  that  principle 
is  founded  the  whole  doctrine  of  abandonment  in  our  law.  The 
underwriter  engages,  that  the  object  of  the  assurance  shall  arrive  in 
.safety  at  its  destined  termination.  If,  in  the  progress  of  the  voyage, 
it  becomes  totally  destroyed  or  annihilated,  or  if  it  be  placed,  by 
reason  of  the  perils  against  which  he  insures,  in  such  a  position, 
that  it  is  wholly  out  of  the  power  of  the  assured  or  of  the  under- 
writer to  procure  its  arrival,  he  is  bound  by  the  very  letter  of  his 
contract  to  pay  the  sum  insured.  But  there  are  intermediate  cases, 
—  there  may  be  a  capture,  which,  though  prima  facie  a  total  loss, 
may  be  followed  by  a  recapture,  which  would  revest  the  property 
in  the  assured.  There  may  be  a  forcible  detention  which  may 
speedily  terminate,  or  may  last  so  long  as  to  end  in  the  impossibil- 
ity of  bringing  the  ship  or  the  goods  to  their  destination.  There 
may  be  some  other  peril  which  renders  the  ship  unnavigable,  with- 
out any  reasonable  hope  of  repair,  or  by  which  the  goods  are  partly 
lost,  or  so  damaged  that  they  are  not  worth  the  expense  of  bringing 
them,  or  what  remains  of  them,  to  their  destination.  In  all  these 
or  any  similar  cases,  if  a  prudent  man  not  insured  would  decline 
any  further  expense  in  prosecuting  an  adventure,  the  termination 
of  which  will  probably  never  be  successfully  accomplished,  a  party 
insured  may,  for  his  own  benefit,  as  well  as  that  of  the  underwriter, 
treat  the  case  as  one  of  a  total  loss,  and  demand  the  full  sum  in- 
sured. But  if  he  elects  to  do  this,  as  the  thing  insured,  or  a  portion 
of  it  still  exists,  and  is  vested  in  him,  the  very  principle  of  the 
indemnity  requires  that  he  should  make  a  cession  of  all  his  right 
to  the  recovery  of  it,  and  that  too,  within  a  reasonable  time  after 
he  receives  the  intelligence  of  the  accident,  that  the  underwriter 
may  be  entitled  to  all  the  benefit  of  what  may  still  be  of  any  value  ; 
and  that  he  may,  if  he  pleases,  take  measures,  at  his  own  cost,  for 
realizing  or  increasing  that  value.  In  all  these  cases  not  only  the 
thing  assured  or  part  of  it  is  supposed  to  exist  in  specie,  but  there 
is  a  possibility,  however  remote,  of  its  arriving  at  its  destination. 
or  at  least  of  its  value  being  in  some  way  affected  by  the  measures 
that  may  be  adopted  for  the  recovery  or  preservation  of  it.  If  the 
assured  prefers  the  chance  of  any  advantage  that  may  result  to 
him  beyond  the  value  insured,  he  is  at  liberty  to  do  so ;  but  then 
he  must  also  abide  the  risk  of  the  arrival  of  the  thing  insured  in 
such  a  state  as  to  entitle  him  to  no  more  than  a  partial  loss.  If, 
in  the  event,  the  loss  should  become  absolute,  the  underwriter  is 


62  ABANDONMENT. 


No.  6.  —  Roux  v.  Salvador. 


not  the  less  liable  upon  his  contract,  because  the  insured  has  used 
his  own  exertions  to  preserve  the  thing  assured,  or  has  postponed 
his  claim  till  that  event  of  a  total  loss  has  become  certain  which 
was  uncertain  before.  In  the  language  of  Lord  Ellenborough,  in 
the  case  of  Mellish  v.  Andrews,  15  East,  13,  "It  is  an  established 
and  familiar  rule  of  insurance,  that  when  the  thing  insured  sub- 
sists in  specie,  and  there  is  a  chance  of  its  recovery,  there  must  be 
an  abandonment.  A  party  is  not  in  any  case  obliged  to  abandon , 
neither  will  the  want  of  an  abandonment  oust  him  of  his  claim  for 
that  which  is  in  fact  an  average  or  total  loss,  as  the  case  may  be.'' 
Again,  in  Mullett  v.  Shedden,  13  East,  304,  the  same  learned  Judge 
says :  "  If,  instead  of  the  saltpetre  having  been  taken  out  of  the 
ship  and  sold,  and  the  property  divested,  and  the  subject-matter 
lost  to  the  owner,  it  had  remained  on  board  the  ship,  and  been 
restored  at  last  to  the  owner,  I  should  have  thought  there  was 
much  in  the  argument,  that,  in  order  to  make  it  a  total  loss,  there 
should  have  been  notice  of  abandonment,  and  that  such  notice 
should  have  been  given  sooner :  but  here  the  property  itself  was 
totally  lost  to  the  owner,  and  the  necessity  of  any  abandonment 
was  altogether  done  away."  In  that  case,  the  sentence  under  which 
the  sale  was  made  had  been  reversed,  and  the  proceeds  directed  t<» 
be  paid  to  the  owner.  So  that  there  was  a  substitution  of  money 
for  a  portion  at  least  of  the  matter  insured.  Both  these  cases  are 
direct  authorities  that  no  abandonment  is  necessary  where  there  is 
a  total  loss  of  the  subject-matter  insured.  To  which  may  be  added 
'.he  cases  of  Green  v.  The  Royal  Exchange  Assurance  Company, 
6  Taunt.  68,  Idle  v.  The  Royal  Exchange  Assurance  Company, 
8  Taunt.  755,  Robertson  v.  Clarke,  1  Bingh.  445,  Cambridge  v. 
Anderton,  2  B.  &  C.  697:  this  last  is  in  all  points  similar  to  the 
present,  and  is  an  express  decision  that,  when  the  subject-matter  in- 
sured has,  by  a  peril  of  the  sea,  lost  its  form  and  species,  —  where  a 
ship,  for  example,  has  become  a  wreck  or  a  mere  congeries  of  planks., 
and  has  been  bond  fide  sold  in  that  state  for  a  sum  of  money, — 
the  assured  may  recover  a  total  loss  without  any  abandonment.  In 
fact,  when  such  a  sale  takes  place,  and  in  the  opinion  of  the  jury  is 
justified  by  necessity  and  a  due  regard  to  the  interest  of  all  parties, 
it  is  made  for  the  benefit  of  the  party  who  is  to  sustain  the  loss ;. 
and  if  there  be  an  insurance,  the  net  amount  of  the  sale,  after 
deducting  the  charges,  becomes  money  had  and  received  to  the  use 
of  the  underwriter,  upon  the  payment  by  him  of  the  total  loss.. 


8KCT.  III.  —  WHERE    UNNECESSARY.  63 


No.  6. — Roux  v.  Salvador. 


It  may  be  proper  to  mention,  however,  that  the  assured  may  pic- 
elude  himself  from  recovering  a  total  loss,  if,  by  any  view  to  his 
own  interest,  he  voluntarily  does,  or  permits  to  be  done,  any  act 
whereby  the  interests  of  the  underwriter  may  be  prejudiced  in  the 
recovery  of  that  money.  Suppose,  for  example,  that  the  money 
received  upon  the  sale  should  be  greater  than  or  equal  to  the  sum 
insured,  if  the  assured  allows  it  to  remain  in  the  hands  of  his  agent, 
or  of  the  party  making  the  sale,  and  treats  it  as  his  own,  he  must 
take  upon  himself  the  consecpience  of  any  subsequent  loss  that  may 
arise  of  that  money,  and  cannot  throw  upon  the  underwriter  a  peril 
of  that  nature.  This  is  the  true  principle  of  the  case  of  Mitchell  v. 
Eclie,  1  T.  E.  608,  which  was  cited  as  an  authority  for  the  decision 
of  the  Court  of  Common  Pleas.  There  the  insurance  was  upon 
sugar  from  Jamaica  to  London.  The  ship  had  been  captured  by  a 
privateer,  deprived  of  some  of  her  crew  and  a  portion  of  her  stores, 
then  released,  and  carried  by  the  remainder  of  the  crew  into  Charles- 
ton, where  she  arrived  on  the  18th  of  February,  1782.  The  report 
does  not  state  when  the  intelligence  of  this  event  arrived  in  London, 
but  it  is  probable  that  it  must  have  reached  the  assured  before  the 
month  of  June  following.  One  of  the  owners  of  the  ship  was  resi- 
dent at  Charleston;  he  took  possession  of  her,  and,  instead  of 
dispatching  her  on  the  original  voyage,  he  sold  the  cargo  of  sugar 
in  the  month  of  June,  and  sent  the  ship  on  another  voyage.  He 
had  been  connected  with  the  assured  in  former  adventures.  He 
retained  the  money  in  his  hands,  and  came  to  England  in  June,  1783. 
The  assured  pressed  him  for  payment  of  the  money,  but  took  no 
step  to  recover  it ;  he  became  insolvent  the  following  year  :  no  claim 
was  made  upon  the  underwriters  till  after  this  event ;  and  then, 
after  the  expiration  of  three  years  from  the  alleged  loss  of  the 
goods,  notice  of  abandonment  was  given,  and  the  action  brought ; 
upon  which  the  defendant  paid  into  court  a  sum  sufficient  to 
cover  a  general  average,  and  pleaded  the  general  issue.  The  court 
gave  judgment  against  the  plaintiff;  stating  that  he  had  abandoned 
too  late.  And  it  cannot  be  disputed,  that  if  he  ever  had  any  colour 
for  claiming  a  total  loss,  it  must  have  been  upon  an  abandonment 
before  he  heard  of  the  sale,  as  he  afterwards  gave  credit  to  his  agent 
for  the  money,  and  elected  to  treat  it  as  his  own,  till  the  event  of 
an  insolvency,  which  prevented  the  underwriter  from  recovering  it. 
But  in  fact  there  never  was  a  total  loss  by  a  peril  of  the  sea.  The 
sugars  were  safe  at  Charleston,  and  the  sale  by  tin1  owner  of  the 


64  ABANDONMENT. 


No.  6.  —  Roux  v.  Salvador.  —  Notes. 


ship  was  not  a  loss  by  a  peril  insured  against.  The  secret  of  the 
conduct  oi  the  assured  may  be  discovered  by  a  reference  to  the  dates 
and  the  circumstances  of  the  time.  During  the  war  with  America, 
and  especially  towards  the  close  of  it,  the  intercourse  between  that 
country  and  the  West  India  Islands  was  much  interrupted,  and  the 
price  of  colonial  produce  was  higher  in  Charleston  than  in  London. 
It  was  therefore  probably  his  interest  to  give  up  his  claim  upon  the 
underwriters,  and  adopt  the  sale.  If  therefore  the  sale  of  the  goods 
could  have  been  treated  as  a  loss,  the  conduct  of  the  assured  had 
either  deprived  him  of  the  right  to  claim  it,  or  made  him  liable,  if 
he  had  the  right,  to  account  to  the  underwriters  for  the  amount  of 
the  sale.  If  indeed  the  court  must  be  supposed  to  have  treated  the 
sale  at  Charleston  as  a  loss,  for  which  the  underwriter  was  at  any 
time  responsible,  the  case  may  be  an  authority  for  establishing  the 
principle,  that  even  when  a  total  loss  has  occurred,  by  a  sale  of 
the  goods,  the  assured  may,  by  his  own  conduct  in  electing  to  take 
the  proceeds  instead  of  making  his  claim  upon  the  underwriter,  if  he 
thereby  alters  the  position  of  the  facts  so  as  to  affect  the  interest  of 
the  underwriter,  forfeit  his  claim  to  recover  a  total  loss.  But  the 
case  is  in  no  view  an  authority  for  the  judgment  of  the  Court  of 
Common  Pleas,  which  for  these  reasons  we  think  ought  to  be  re- 
versed ;  and  a  verdict  entered  for  the  plaintiff  for  £27  15s.  Gel, 
and  40s.  costs.  Judgment  for  Plaintiff. 

ENGLISH   NOTES. 

Ship  with  outfit  and  stores  was  insured  on  a  valued  policy  for  a 
voyage,  and  until  moored  twenty-four  hours  in  safety.  The  ship,  by 
reason  of  a  peril  insured  against,  sank  as  she  was  being  brought  into 
port.  The  cargo,  consisting  of  slaves,  was  saved  and  sold.  Held,  that 
the  assured  were  entitled  to  recover  as  for  a  total  loss,  and  according 
t<>  the  value  stated  in  the  policy.  It  was  held  that  (in  the  absence  of 
fraud)  no  account  could  be  taken,  or  abatement  made,  on  a  suggestion 
that  the  stores  which  entered  into  the  original  value  had  been  expended 
in  the  course  of  the  voyage.  Shawe  v.  Felton  (K.  B.  1801),  6  R.  11. 
394;  3  East,  109.  A  notice  of  abandonment  had  been  given,  but  it 
does  not  appear  that  this  was  essential,  the  decision  having  been  given 
on  the  ground  that  the  ship  never  arrived  in  port  as  a  ship. 

Where  goods  were  assured  under  a  valued  policy,  the  ship  captured, 
and  by  a  sentence  of  the  French  Admiralty  Court,  the  cargo  was  adjudged 
good  prize,  the  captors  paying  freight  and  restoring  the  ship,  and  the 
goods  were  consequently  sold  by  the  consignees  for  the  benefit  of  the 


SECT.  III.  —  WHERE   UNNECESSARY.  65 

No.  6.  —  Roux  v.  Salvador.  —  Notes. 

captors;  Lord  Eleexborough  held  the  assured  entitled  to  recover  as 
for  a  total  loss,  and  said  that  without  evidence  of  fraud  he  would  not 
disturb  the  valuation.  Marshall  v.  Parkes  (K.  B.  at  N.  P.  1809),  2 
Camp.  (59;   11  B,  B,  665. 

Perishable  cargo  insured  free  from  average  unless  general  or  the  ship 
should  be  stranded,  was  damaged  by  sea  in  a  storm ;  and  by  the  same  cause 
the  vessel  was  driven  into  port  where  the  authorities  prohibited  the  land- 
ing of  the  cargo,  and  it  was  necessarily  thrown  overboard.  Held,  a  total 
loss.     Dyson  v.  Rowcroft  (C.  P.  1803),  3  Bos.  &  Pul.  474;   7  E.  E.  809. 

Cargo,  the  subject  of  an  insurance,  is  seized,  condemned  and  sold,  by 
order  of  a  competent  court.  On  appeal  the  sentence  of  condemnation  is 
reversed,  and  the  value  ordered  to  be  restored.  The  insured  is  entitled, 
without  having  given  notice  of  abandonment,  to  recover  as  for  a  total 
loss.  "The  property  itself  was  wholly  lost  to  the  owner,  and  therefore 
the  necessity  of  any  abandonment  was  altogether  done  away."  Mullett 
v.  Shecldon  (K.  B.  1811),  13  East,  304;  12  E.  E.  347. 

Insurance  of  goods.  The  ship's  papers  were  taken  away,  by  order  of 
the  Swedish  Government,  on  the  7th  of  December.  Notice  of  abandon- 
ment was  given  on  the  17th  of  January  following.  Subsequently  the 
goods  were  seized,  and  never  restored.  Held  that,  although  the  delay 
in  giving  notice  was  fatal  to  a  claim  for  constructive  total  loss,  this  did 
not  preclude  a  claim  for  actual  total  loss  by  reason  of  the  actual  seizure 
of  the  goods.  Lord  Ellexborough  said:  "Abandonment  is  only 
necessary  to  make  a  constructive  total  loss."  Mellish  v.  Andrews 
(K.  B.  1812),  15  East,  13,  16;  13  E.  E,  351. 

Insurance  on  goods  at  and  from  London  to  Demerara.  The  ship  was 
captured  near  the  latter  place  by  an  American  privateer,  emptied  of  her 
stores,  and  the  crew  (except  the  captain  and  a  boy)  taken  out.  She  was 
soon  afterwards  re-taken  and  carried  into  St.  Thomas,  where  ship  and 
stores  were  sold  by  order  of  the  Admiralty  Court  there,  made  on  petition 
of  the  captain.  Lord  Ellexborough  held  that  the  captain  had  no  right 
to  sell  the  cargo,  unless  all  other  expedients  for  raising  money  to  pay 
the  salvage  failed.  It  does  not  appear  that  he  had  exhausted  all  other 
expedients,  or  that  by  waiting  a  reasonable  time  he  could  not  have  got 
a  crew,  or  that  the  goods  might  not  have  been  forwarded  to  their  desti- 
nation by  other  vessels.  There  was  a  verdict  for  the  defendants,  and  the 
King's  Bench  refused  a  rule  to  show  cause  against  it.  Underwood,  v. 
Robertson  (K.  B.  1815),  4  Gamp.  138. 

"Capture  operates  as  a  total  loss,  unless  it  be  redeemed  by  subsequent 
events."  Per  Abbott,  J.,  Color/an  v.  London  Ass.  Co.  (K.  B.  1816), 
5  M.  &  S.  447,  456.  In  the  actual  case,  the  voyage  had  been  entirely 
defeated;  and  notice  of  abandonment  had  been  given,  though  the  court 
thought  it  unnecessary. 
vol.  i.  —  5 


66  ABANDONMENT. 


No.  6.  —  Roux  v.  Salvador.  —  Notes. 


The  proposition  that  no  abandonment  is  necessary  where  the  subject- 
matter  insured  has  been  actually  lost  to  the  owner  by  the  perils  insured 
against,  is  involved  in  Idle  v.  Royal  Exchange  Ass.  Co.  (Ex.  181*);,  8 
Taunt. 755;  and  Mount  v.  Harrison  (C.  P.  1827),  4Bing,  388;  which  art- 
referred  to  more  at  length  in  the  notes  to  the  next  ruling  case  (No.  7). 

A  ship  got  upon  rocks  in  the  River  St.  Lawrence  in  foggy  and 
tempestuous  weather.  Surveyors  reported  that  the  expense  of  getting 
her  off  —  if  she  could  be  got  off  —  and  repairing  her,  would  far  exceed 
her  value  when  repaired.  The  captain  and  agents  for  the  ship  then 
sold  her.  The  purchaser  did  succeed  in  getting  her  off  the  rock,  and 
she  was  afterwards  repaired  and  sent  on  a  voyage.  In  an  action  by 
assured  on  ship,  who  had  given  no  notice  of  abandonment,  the  plaintiff 
had  a  verdict  for  a  total  loss.  The  court  refused  a  rule  for  a  new  trial. 
Abbott,  C.  J.,  said:  "  Whether  the  ship  was  repairable  or  not  was  left 
a  question  for  the  jury,  and  I  think  they  disposed  of  it  correctly.  If 
the  subject-matter  of  insurance  remained  a  ship,  it  was  not  a  total  loss; 
but  if  it  were  reduced  to  a  mere  congeries  of  planks,  the  vessel  was  a 
mere  wreck;  the  name  which  you  may  think  fit  to  apply  to  it  cannot 
alter  the  nature  of  the  thing."  Cambridge  v.  Anderton  (K.  B.  1824). 
2  B.  &  C.  691,  692.  In  other  words,  it  might  be  put  thus :  "If  the  thing 
was  properly  considered  to  be  a  mere  wreck,  and  was  properly  sold 
accordingly,  the  circumstance  that  the  purchaser  made  a  ship  of  it 
makes  no  difference." 

Claim  for  total  loss  under  policy  on  ship.  The  ship  had  put  into 
Mauritius  in  a  damaged  state;  and,  after  survey,  had  been  sold  by  the 
master  as  not  worth  repairing.  Tintial,  C.  J.,  in  his  address  to  the  jury, 
said:  "The  only  question  in  this  case  is  whether,  under  the  circum- 
stances, there  has  or  has  not  been  a  total  loss  of  the  vessel  in  con- 
sequence of  the  sale,  and  that  will  depend  upon  whether  the  sale 
was  necessary  for  the  benefit  of  the  parties  concerned.  ...  In  the 
present  case  it  appears  that  the  vessel  was  in  a  place  where  the  repairs 
could  be  done,  and  where  money  could  be  obtained,  although  at  an  ex- 
orbitant expense.  Still  the  question  is  whether  the  expenditure  was  so 
great  that  no  prudent  man,  in  the  exercise  of  a  sound  and  vigorous 
judgment,  would  hesitate  as  to  the  propriety  of  selling.  If  you  think 
that  if  the  owner  had  been  on  the  spot  uninsured,  he  would,  on  the 
exercise  of  a  sound  discretion,  have  repaired  the  vessel ;  or  that,  if  an 
agent  of  the  underwriters  had  been  there,  he  exercising  such  discretion 
would  have  repaired,  then  this  captain  ought  certainly  to  have  done  so. 
But,  if  they  would  not  have  done  so,  then  1  think  this  captain  was  not 
compellable  to  repair,  and  the  sale  in  such  case  will  have  taken  place 
under  a  justifiable  necessity."  There  was  a  verdict  for  the  defendant, 
and  a  motion  was  made  for  a  new  trial.     The  court  were  of  opinion  that 


SECT.  III. — WHERE    UNNECESSARY.  67 

No.  6.  — Roux  v.  Salvador.  — Notes. 

the  case  had  been  properly  left  to  the  jury;  but  granted  a  rule  nisi  for 
a  new  trial  on  payment  of  eosls,  on  the  ground  that  the  verdict  was 
against  evidence.      Somes  v.  Sugrue  (1830),  4  (Air.  &  P.  276. 

Under  a  time  policy  on  ship,  the  loss  of  the  voyage  will  not  make  ;i 
constructive  total  loss  of  the  ship.  The  sale  by  the  master  of  a  ship 
while  in  a  wrecked  condition  does  not  affect  the  underwriters,  unless  it 
was  necessary  in  the  sense  that  it  was  done  in  the  exercise  of  a  sound 
judgment  for  the  benefit  of  all  parties.  Doyle  v.  Dallas  (1ST.  P.  1831), 
1  .Mood.  &  Rob.  48. 

The  following  is  an  important  case  upon  the  construction  of  the  ordi- 
nary memorandum,  •' free  from  average  unless  general  or  the  ship  be 
stranded  " :  — 

Under  a  policy  containing  the  memorandum  as  to  (later  alia)  ''seed," 
linseed  packed  in  bags  was  shipped  from  Calcutta  to  London.  The  ship 
encountered  a  gale,  and  on  arrival  at  the  Cape  of  Good  Hope,  the  state 
of  the  cargo  was  ascertained  as  follows:  505  bags  had  been  thrown  out 
to  lighten  the  ship;  1023  bags  were  so  damaged  that  no  part  of  them 
could  have  been  delivered  in  a  merchantable  state  in  England,  and  of 
the  linseed  in  these  bags  a  great  part  was  thrown  away  as  worthless 
and  the  rest  sold  for  a  few  shillings;  the  remaining  1160  bags  were 
carried  on  to  London  and  delivered  sound.  The  question  was  as  to  the 
1023  bags.  The  insured  claimed  to  be  paid  for  these  as  totally  lost ; 
but  the  insurer  (defendant),  under  the  condition  of  the  memorandum, 
refused  to  pay  anything  for  them.  The  court,  reversing  the  decision 
of  the  Queen's  Pencil  (who  considered  themselves  bound  by  Davy  v. 
Mitfovd,  15  East,  559),  gave  judgment  for  the  defendant.  They 
summed  up  the  principle  of  the  judgment  as  follows:  "Where  memo- 
randum goods  of  the  same  species  are  shipped,  whether  in  bulk  or  in 
packages,  not  expressed  by  distinct  valuation  or  otherwise  in  the  policy 
to  be  separately  insured,  and  there  is  no  general  average,  and  no  strand- 
ing, the  ordinary  memorandum  exempts  the  underwriters  from  liability 
for  a  total  loss  or  destruction  of  part  only,  though  consisting  of  one  or 
more  entire  packages,  and  though  such  package  or  packages  be  entirely 
destroyed  or  otherwise  lost  by  the  specified  perils. "  Ralll  v.  Janson  — 
Janson  v.  Ralll  (Ex.  Ch.  from  Q.  E.  1856),  6  Ellis  &  El.  422,  25  L.  J. 
Q.  P.  300. — In  the  case  of  Davy  v.  Mitford,  above  referred  to,  rlax 
packed  in  mats  was  insured  f.  p.  a.  The  ship  was  wrecked.  The  as- 
sured did  not  abandon,  and  got  possession  of  part  of  the  cargo  in  specie, 
though  it  turned  out  to  be  very  much  damaged.  The  assured  claimed 
to  recover  as  for  a  total  loss.  Lord  Ellenborough  said  that  there  being 
no  abandonment  the  plaintiff  could  not  claim  unless  there  was  an  actual 
total  loss,  and  therefore  could  not  recover  in  respect  of  the  portion  of 
cargo  which  came  to  his  hands.     Put  he  held  that  lie  was  entitled  to 


G8  ABANDONMENT. 


No.  6.  —  Roux  v.  Salvador.  —  Notes. 


claim  as  on  a  total  loss  in  respect  of  the  flax  which  was  actually  lost. 
The  principle  of  the  latter  branch  of  the  decision  has  since  been  treated 
as  not  maintainable,  and  it  is  expressly  overruled  by  the  judgment  of 
the  Exchequer  Chamber  in  the  above  case  of  Ralli  v.  Janson. 

Goods  were  insured  on  board  ship  from  Liverpool  to  Matamoras 
against  perils  including  "restraints  and  detainments  of  kings,  &c." 
The  ship  was  seized  by  a  cruiser  of  the  U.  S.  Government  on  suspicion 
of  containing  contraband  of  war.  A  suit  being  instituted  by  the  captors 
in  the  Prize  Court  at  New  Orleans,  judgment  was  given  against  the 
captors.  The  captors  appealed,  and  subsequently,  on  hearing  of  the  ap- 
peal, the  assured  gave  notice  of  abandonment.  The  ship  and  goods 
were,  by  order  of  the  court,  detained  pending  the  appeal,  and  ulti- 
mately, \>y  order  of  the  same  court,  sold.  The  owners  of  the  goods  might 
have  prevented  the  sale  by  a  deposit  of,  or  giving  bail  for,  the  value; 
but  the  circumstances  were  such  that  a  prudent  uninsured  owner  would 
not  have  done  so.  Held,  in  the  Queen's  Bench,  that  although  the  notice 
of  abandonment  was  too  tardy,  the  sale  was  a  consequence  of  the  seizure, 
and  a  total  loss  for  which  the  assured  were  entitled  to  recover  without 
notice  of  abandonment.  Stringer  v.  English,  &c.  Insurance  Co.  (1869), 
L.  R.,  4  Q.  B.  676,  38  L.  J.  Q.  B.  321.  This  decision  was  affirmed  in 
the  Exchequer  Chamber  (1870),  L.  R,,  5  Q.  B.  599,  39  L.  J.  Q.  B.  214. 
Although  that  court  did  not  expressly  decide  that  the  assured  were  so 
entitled  to  recover  without  notice  of  abandonment,  it  may  be  inferred 
that  they  would,  if  necessary,  have  held  the  notice  to  be  immaterial. 

The  master  of  a  vessel  has  no  power  to  sell  so  as  to  affect  the  in- 
surers except  under  circumstances  of  stringent  necessity.  So  in  a  case 
where  the  vessel  had  grounded  on  a  shoal,  and  the  court,  upon  the  evi- 
dence, came  to  the  conclusion  that  she  was  uninjured  and  not  in  immi- 
nent peril,  and  that  she  might  by  greater  exertions  on  the  part  of  the 
captain  and  crew  have  been  brought  into  safety,  — as  she  ultimately  was 
brought  off  without  much  difficulty  by  the  purchaser  from  the  master,  — 
it  was  held  that  the  assured  were  not  entitled  to  recover  as  on  a  total 
loss.      Cobequid  v.  Mar.  Ins.  Co.  Barteaux  (1875),  L.  R.,  6  P.  C.  319. 

There  are  a  number  of  cases,  not  involving  the  question  of  a  claim  for 
total  loss  on  a  policy,  where  the  circumstances  under  which  the  master 
of  a  ship  is  justified  in  selling  the  cargo  have  been  considered.  The 
principle  is  that  as  against  the  owner  of  the  goods,  the  master,  in  order 
to  justify  the  act  of  selling  them,  must  establish  (1)  a  necessity  for  the 
sale;  (2)  inability  to  communicate  with  the  owner  and  obtain  his  direc- 
tions. The  leading  case  is  Australasian  Steam  Nav.  Co.  v.  Morse 
(P.  C.  on  appeal  from  X.  S.  Wales,  1872),  L.  R.,  4  P.  C.  App.  222. 
Other  cases  are  Van  Omeron  v.  Do  wick  (Lord  Ellenborough  at  N.  P. 
1809),  2  Camp.  42;   Campbell  v.  Thompson  (1816),  1  Stark.  399;   Free- 


SECT.  III.  —  WHERE   UNNECESSARY.  69 

No.  6.       Roux  v.  Salvador.  —  Notes. 

man  v.  E.  I.  Co.  (K.  B.  1822)  5  B.  &  Aid.  617;  Tronson  v.  Dent  (P.  C. 
on  appeal  from  Hong  Kong,  1853),  8  Moore  P.  C.  419;  Acatos  v.  Hums 
(C.  A.  1878),  3  Ex.  1).  282,  17  L.  J.  Ex.  566;  Atlantic  Mutual  Ins. 
Co.  v.  i/^A  (C.  A.  1880),  16  Cli.  D.  471.  The  leading  authority  in 
affirmance  of  the  master's  power  under  such  conditions  is  The  Grati- 
tudine  (Adm.  1801),  3  C.  Rob.  196.  That  was  a  question  of  hypothe- 
cating the  cargo,  hut  it  impliedly  covers  the  case  of  a  sale,  and  imports 
the  motive  of  prosecuting  the  voyage  where  that  is  possible,  as  entering 
into  the  question  of  necessity. 

Upon  a  constructive  total  loss  happening  to  an  insured  ship,  where 
notice  of  abandonment  is  given  by  the  owners  to  the  original  insurers, 
there  is  no  necessity  for  the  latter  to  give  notice  to  the  insurers  upon  a 
policy  of  reinsurance.  Uzielli  v.  Boston  Marine  Ins.  Co.  (C.  A.  1884), 
15  Q.  B.  D.  11,  54  L.  J.  Q.  B.  142. 

The  decision  in  Stringer  v.  English,  &c.  Assurance  Co.  was  followed 
in  1885  by  Mathew  J.,  in  Lenj  v.  Merchants'  Marine  Ins.  Co.,  52 
L.   T.  263. 

A  ship  insured  against  (inter  alia)  barratry  of  the  master  and  crew, 
is  by  their  barratrous  act  left  derelict;  and  subsequently  brought  in  by 
salvors  and  sold,  under  decree  of  a  competent  court,  for  less  than  the 
actual  cost  of  salvage  services.  Such  a  sale  constitutes  an  actual,  and 
not  merely  constructive,  total  loss;  and  the  claim  as  for  a  total  loss  is 
good  although  no  notice  has  been  given  of  abandonment.  Cossman  v. 
West  (P.  C.  1887),  13  App.  Cas.  160,  57  L.  J.  P.  C.  17. 

AMERICAN   NOTES. 

Without  an  abandonment,  there  can  be  no  recovery  for  a  mere  construc- 
tive total  loss  arising  from  an  injury  to  more  than  half  the  value  of  the  vessel. 
Peirce  v.  Ocean  Ins.  Co.,  18  Pickering  (Mass.),  83;  29  Am.  Dec.  567.  Here 
Shaw,  Ch.  J.,  observed  :  "A  question  has  been  made,  whether  a  claim  for  a 
total  loss  does  not  necessarily  imply  an  abandonment.  It  is  difficult  to 
answer  a  question  thus  nakedly  presented.  Upon  principle  it  would  seem 
that  a  mere  claim  for  a  total  loss  does  not  necessarily  imply  an  abandonment. 
becau.se  in  some  cases  a  total  loss  may  be  recovered  without  abandonment. 
Idle  v.  Royal  Exch.  Ass.  Co.,  8  Taunt.  755.  But  commonly  a  claim  for  a 
total  loss  will  lie  accompanied  by  a  statement  of  facts  and  circumstances. 
by  the  reasons  and  grounds  of  claim  upon  which  the  assured  proceeds,  and 
such  statement  of  the  grounds  of  claim  may  perhaps  carry  as  plain  an  impli- 
cation of  actual  abandonment  as  could  be  done  by  express  words;  though 
it  was  stated  by  Lord  Ellenborough  that  an  implied  parol  abandonment 
is  too  uncertain,  and  cannot  be  supported.  Parmeter  v.  Todhunler,  1  Campb. 
541." 

But  where  a  sale  is  necessarily  made  on  account  of  injury,  abandonment 
is  not  necessary  to  enable  the  insured  to  recover  for  total  loss.     Prince  v. 


70  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter.  —  Rule. 


Ocean  Ins.  Co.,  40  Me.  481;  63  Am.  Dec.  676;  Howland  v.  India  Ins.  Co., 
131  A  lass.  254. 

"  When  a  steamboat,  injured  at  or  near  a  home  port  by  a  peril  insured 
against,  remains  in  specie,  the  assured  cannot,  without  abandoning  the  vessel 
to  the  underwriter,  claim  indemnity  as  for  a  total  loss,  although  the  cost  of 
repairing  the  vessel  may  exceed  its  value  when  repaired."  Globe  Ins.  Co.  v. 
Sherlock,  25  Ohio  St.  50.  The  principal  case  was  cited  by  counsel  on 
both  sides. 

No.  7.  —  RANKIN  v.  POTTER. 

(h.  l.  1873.) 

POTTER  v.  RANKIN. 
(In  courts  below,  1868,  1870.) 

RULE. 

No  abandonment  is  necessary  where  there  is  nothing 
which,  on  abandonment,  can  pass  to  be  of  value  to  the 
underwriters. 

By  a  charter-party  entered  into  respecting  a  ship  on  her 
outward  voyage  to  New  Zealand,  the  ship,  after  dischar- 
ging in  New  Zealand,  was  to  sail  to  Calcutta,  and  "  being 
there  tight,  staunch,  a*nd  strong,  and  everyway  fitted  for  the 
voyage,"  the  charterer  was  to  put  on  board  a  specified  cargo 
for  England  at  a  stipulated  freight.  The  owners  shortly 
afterwards  effected  a  polic}7  on  homeward  chartered  freight 
valued  at  £  .  The  ship  was  damaged  by  perils  of  the 
sea  on  her  voyage  to  New  Zealand,  and  was  patched  up  as 
well  as  could  be  done  in  a  New  Zealand  port  for  her  voy- 
age to  Calcutta.  The  ship  was  overhauled  at  Calcutta,  and 
it  was  found  that  the  expense  of  repairs  would  exceed  the 
value  of  the  ship  when  repaired  jrfus  the  difference  between 
the  chartered  and  the  current  freight  to  England.  The 
owners  then  gave  notice  of  abandonment  to  the  insurers  of 
the  ship.  It  was  admitted  that  the  damage  to  the  ship 
was  such  as  to  amount  to  a  constructive  total  loss  if  the 
notice  had  been  given  in  time  ;  but  in  an  action  against 
the  underwriters  on  the  ship  it  had  been  decided  that  the 
notice  was  not  given  in  time  :  — 


SECT.  III.  — WHERE    UNNECESSARY.  71 

No.  7. — Rankin  v.  Potter. 

Held,  that,  as  regards  the  underwriters  on  freight,  it  was 
immaterial  whether  the  notice  of  abandonment  to  the  under- 
writers on  ship  had  been  properly  given  or  not;  and  that, 
as  a  prudent  uninsured  owner  would  not  have  incurred  the 
cost  of  repairing  the  ship,  the  earning  of  the  chartered 
freight  bad  become  impracticable,  and  that  there  was  a  total 
loss  as  regards  the  policy  on  freight. 

Held,  further,  that,  although  the  owners  had  tendered 
the  ship  in  her  unrepaired  condition  to  the  agents  for  char- 
terer, and  they  had  declined  to  load  a  cargo,  on  the  ground 
that  the  charterer  had  become  bankrupt,  the  loss  of  freight 
was  a  loss  occasioned  by  the  perils  of  the  sea. 

Rankin  v.  Potter. 

L.  R.,  6  II.  L.  83-108  (s.  c.  42  L.  J.  C.  P.  27). 

Potter  v.  Rankin. 

L.  K.,  3  C.  P.  562-574 ;  5  C.  P.  341-379  (s.  c.  39  L.  J.  C.  P.  147). 

This  was  an  action  by  a  mortgagee  in  possession  of  the  ship  Sir 
William  Eyre  against  an  underwriter  on  chartered  freight  to  re- 
cover as  for  a  total  loss. 

The  cause  was  tried  before  Bovill,  C.  J.,  at  the  sittings  in  London 
after  Michaelmas  Term,  1867,  when  a  verdict  was  entered  for  the 
defendant  with  leave  to  move  to  enter  it  for  the  plaintiff. 

A  rule  having. been  obtained  accordingly  and  argued,  the  court 
unanimously  discharged  the  rule,  and  so  decided  in  favor  of  the  de- 
fendants. The  judgment  — -that  of  Bovill,  C.  J.,  Willes,  J.,  Keating,  J., 
and  Montague  Smith,  J.  —  was  delivered  by  Willes,  J.,  and  is 
reported  in  the  Law  Beports  (L.  B.,  3  C.  B.  563-574).  The  principle 
on  which  the  judgment  proceeds  may  be  gathered  from  the  follow- 
ing statement  towards  the  conclusion  :  "  To  avoid  inconsistency 
and  anomaly,  either  the  doctrine  of  constructive  total  loss  by  dam- 
age to  ship  making  repair  improvident  must  be  extended  to  freight. 
with  all  its  conditions,  including  that  of  abandonment,  when  the 
earning  of  freight  remains  within  the  control  of  the  assured,  by 
reason  of  the  ship  being  neither  actually  lost,  sold,  or  abandoned, 
or  it  ought  to  be  held  that  there  is  no  total  loss  of  freight  by  dam- 
age to  ship  in  a  case  like  the  present,  where  the  ship  remains   in 


72  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


specie  under  the  control  of  the  assured,  neither  sold  nor  abandoned  ; 
or,  in  other  words,  as  already  indicated,  that  the  true  character  of 
the  insurance  in  question  was  against  total  loss  of  freight  by  total 
loss  of  ship,  actual  or  constructive." 

An  appeal  was  brought  in  the  Exchequer  Chamber,  and  was 
argued  and  considered  upon  a  statement  of  the  facts  in  a  case 
which  is  set  forth  in  the  report  in  L.  R,  5  C.  P.  341.  The  case, 
omitting  the  documents  set  out  in  the  appendix  which  contain  the 
details  of  matters  briefly  stated  in  the  case,  was  as  follows  :  — 

1.  The  action  was  brought  to  recover  £100  upon  a  policy  of 
insurance  effected  by  the  plaintiffs  in  the  sum  of  £4000  on  "home- 
ward chartered  freight "  by  the  ship  Sir  William  Eyre. 

2.  The  declaration  contained  a  count  on  the  policy  for  a  total 
loss,  and  the  common  money  counts.  To  the  first  count  the  defend- 
ant pleaded  denial  of  the  insurance,  of  the  plaintiffs'  interest,  of 
the  loss  by  perils  insured  against,  of  the  loss  of  freight  through  the 
alleged  total  loss  of  the  ship,  and  that  the  ship  without  sufficient 
cause  did  not  proceed  on  her  voyage,  but  deviated  therefrom;  and 
to  the  money  counts,  never  indebted.     Issue  thereon. 

3.  The  cause  was  tried  before  Bovill,  C.  J.,  at  the  London  sittings 
after  Michaelmas  Term,  1866,  when  the  following  facts  were  given 
in  evidence  or  admitted  on  both  sides :  — 

4.  The  plaintiffs  are  shipowners  at  Glasgow,  and  constitute  the 
firm  of  Potter,  Wilson  &  Co. ;  the  defendant  is  an  underwriter  at 
Liverpool. 

5.  On  the  7th  of  December,  1862,  the  Sir  William  Eyre  (of  which 
ship  the  plaintiffs  were  mortgagees  in  possession)  left  Greenock 
under  the  command  of  Captain  Blakey  on  a  voyage  to  Southland, 
and  thence  to  Dunedin,  in  Otago,  New  Zealand,  having  a  general 
cargo  and  a  large  number  of  government  emigrants  on  board. 

6.  On  the  9th  of  February,  1863,  whilst  the  vessel  was  on  her 
outward  voyage,  the  plaintiffs  entered  into  a  charter-party  with  one 
De  Mattos,  according  to  which  the  Sir  William  Eyre,  having  dis- 
charged her  cargo  and  passengers  at  New  Zealand,  was  to  proceed 
to  Calcutta,  and  there  load  a  homeward  cargo  for  Liverpool  or 
London. 

7.  A  few  days  afterwards  the  plaintiffs  caused  the  policy  now 
sued  upon  to  be  effected,  in  order  to  cover  for  the  voyage  out  the 
chartered  freight  to  be  earned  under  the  above  charter-party.  The 
defendants  underwrote  the  policy  for  £100.      It  described  the  voy- 


SECT.  III.  —  WHERE   UNNECESSARY.  73 

No.  7.  —  Rankin  v.  Potter. 

age  insured  thus:  "At  and  from  Clyde  to  Southland,  while  there, 
and  thence  to  Otago  (N.  Z.),  and  for  thirty  days  in  port  there  after 
arrival,"  and  it  described  the  interest  insured  to  be  "homeward 
chartered  freight,  valued  at  ." 

8.  On  the  23d  of  April,  1863,  the  Sir  William  Eyre  arrived  at 
Bluff  Harbour,  Southland.  While  there,  she  drifted  and  took  the 
ground;  and  the  master,  rinding  great  difficulty  in  getting  her  off, 
sent  on  the  emigrants  and  their  luggage  to  Dunedin  at  the  ship's 
expense. 

9.  On  the  22d  of  May  the  ship  floated,  and  on  the  27th  a  survey 
was  held  upon  her. 

10.  The  ship  remained  aground,  with  the  exception  of  brief  inter- 
vals, until  shortly  before  the  29th  of  May.  On  that  day  a  violent 
gale  arose,  and  again  caused  the  Sir  William  Eyre  to  take  the 
ground.  She  struck  fore  and  aft,  and  remained  firmly  fixed  until 
the  4th  of  June,  when  she  was  again  afloat.  Before,  however,  she 
could  be  brought  up  in  the  channel,  she  grounded  again,  and  was 
not  finally  got  off  till  the  1st  of  July,  when  she  left  for  Dunedin. 

1  I.  It  was  admitted  that  what  occurred  whilst  the  ship  was  at 
Bluff  Harbour  was  correctly  described  in  the  master's  protest,  a  copy 
of  which  was  appended  to  the  case. 

12.  On  the  4th  of  July,  1863,  the  Sir  William  Eyre  arrived  at 
Port  Chalmers,  which  is  the  port  of  Dunedin.  While  there,  further 
surveys  were  made  of  the  ship.  The  aforesaid  surveys  and  protest 
were  duly  sent  home  to  the  assured  and  received  by  them. 

13.  There  was  no  dry-dock  or  patent  slip  in  New  Zealand,  and 
consequently  the  extent  of  the  damage  which  the  ship  had  sus- 
tained could  not  be  more  fully  ascertained  than  appears  from  these 
surveys. 

14.  The  Sir  William  Eyre  remained  at  Port  Chalmers  until  the 
14th  of  April,  1864,  being  prevented  solely  from  want  of  funds  from 
making  the  necessary  preparations  to  proceed  to  Calcutta.  The 
master  had  not  sufficient  funds  to  defray  the  ship's  charges  and 
disbursements  and  the  liabilities  which  he  had  incurred  in  New 
Zealand ;  and,  not  being  able  to  raise  such  funds  in  New  Zealand, 
nor  Messrs.  Dalgetty,  to  whom  the  ship  was  consigned  at  Otago, 
being  willing  to  advance  to  him  the  money  he  required  for  the  pur- 
poses aforesaid,  he  was  obliged  to  wait  until  he  obtained  a  sufficient 
remittance  from  the  plaintiffs. 

15.  Messrs.  Dalgetty  corresponded  regularly  with  the  plaintiffs; 


74  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


and  the  letters  which  passed  between  them,  and  those  which  passed 
between  the  master  and  the  plaintiffs,  were  set  out  in  the  appen- 
dix to  the  case.  The  freight  which  was  payable  at  New  Zealand 
amounted  to  about  £1300,  and  was  received  there  by  the  master. 
This  sum  would  have  been  sufficient  for  the  purposes  of  the  ship, 
if  siie  had,  without  having  met  with  any  disaster,  prosecuted  her 
voyage  to  Calcutta,  and  if  none  of  the  circumstances  mentioned  in 
the  correspondence  between  Messrs.  Dalgetty  and  the  plaintiff  had 
occurred. 

16.  While  the  Sir  William  Eyre  remained  at  Port  Chalmers,  and 
after  she  had  discharged  her  cargo,  the  captain,  in  order  that  the 
vessel  should  not  be  wholly  unproductive,  permitted  her  to  be  stored 
with  coals  to  the  extent  of  1200  tons,  and  received  as  rent  for  such 
coals  £778  3s.  5d. 

17.  In  February,  1864,  the  captain  received  the  necessary  funds 
from  the  plaintiffs,  and  he  immediately  proceeded  to  discharge  his 
liabilities  and  have  the  temporary  repairs  which  had  been  recom- 
mended by  the  surveyors  completed,  so  as  to  enable  the  ship  to 
proceed  in  ballast  to  Calcutta. 

18.  Port  Sydney  is  a  port  where  the  ship  could  have  been  thor- 
oughly repaired,  and  is  about  eight  or  nine  days'  sail  from  Port 
Chalmers;  and  the  voyage  from  the  latter  place  to  Calcutta  is  much 
longer,  and  attended  with  greater  risk,  than  the  voyage  from  Port 
Chalmers  to  Sydney.  The  master  did  not  know  that  there  was  a 
dry-dock  at  Sydney,  and  that  the  ship  could  be  repaired  there;  nor 
did  he  make  any  inquiries  as  to  the  nearest  port  where  his  ship 
could  be  repaired,  because  he  considered  her  capable  of  proceeding 
in  ballast  to  Calcutta,  whither  she  was  bound  by  her  charter,  and 
where  he  knew  that  the  repairs  could  be  done. 

19.  There  are  a  great  quantity  of  worms  in  Port  Chalmers,  and 
a  ship  lying  there  is  likely  to  get  wormed  if  some  of  her  metal  has 
come  off. 

20.  On  the  14th  of  April,  1864,  as  soon  as  the  temporary  repairs 
had  been  executed,  the  Sir  William  Eyre  left  Port  Chalmers  for 
Calcutta,  where  she  arrived  on  the  7th  of  June. 

21.  As  soon  as  the  Sir  William  Eyre  arrived  at  Calcutta,  the 
master  went  to  the  agents  of  De  Mattos  at  that  port,  and  applied 
to  them  to  carry  out  the  charter-party.  A  copy  of  the  charter-party 
had  been  forwarded  to  them  by  De  Mattos  many  months  previously; 
but,  as  they  had  been  informed  in  December,  1863,  that  he  had  (as 


SECT.  III.  —  WHERE    UNNECESSARY.  75 

No.  7.  —  Rankin  v.  Potter. 

the  fact  was)  failed  and  stopped  payment  in  that  month,  they  had 
made  no  preparations  for  providing  a  cargo  for  the  vessel,  and,  on 
the  master  applying  to  them,  they  absolutely  refused  to  have  any- 
thing to  do  with  the  ship  or  with  providing  a  cargo.  The  master 
thereupon  placed  the  Sir  William  Eyre  in  the  hands  of  Messrs. 
Mackinnon  &  Mackenzie,  the  plaintiffs'  correspondents  at  Calcutta. 

22.  After  her  arrival  at  Calcutta,  the  Sir  William  Eyre  was  put 
into  dry-dock,  and  surveyed  several  times.  Copies  of  the  surveys 
and  estimates  made,  and  of  the  letters  which  passed  between  the 
plaintiffs  and  Messrs.  Mackinnon  &  Mackenzie  were  set  out  in  the 
appendix.1  The  surveys  and  estimates  were  duly  forwarded  to  and 
received  by  the  plaintiffs ;  and,  upon  the  receipt,  in  the  month  of 
August,  1864,  of  the  survey  dated  the  8th  of  June,  the  plaintiffs 
at  once  gave  notice  of  abandonment  to  the  defendant,  and  also 
notice  of  abandonment  to  the  underwriters  on  ship ;  but  neither 
of  these  notices  of  abandonment  were  accepted  by  the  respective 
underwriters. 

23.  The  Sir  William  Eyre,  after  she  had  been  put  at  Calcutta 
into  dry-dock,  was  moored  in  the  Hooghly,  and  whilst  she  was  there 
lying  a  violent  cyclone,  on  the  5th  of  October,  1864,  drove  her  from 
her  moorings,  and  she  was  stranded  and  became  a  total  wTreck. 

24.  It  was  admitted  that  the  cost  of  repairing  the  vessel  at  Cal- 
cutta so  as  to  make  her  seaworthy  for  carrying  a  cargo  to  England 
would  have  exceeded  the  value  of  the  ship  when  repaired,  plus  the 
difference  between  the  chartered  freight  and  the  current  freight, 
which  would  amount  to  about  £450. 

25.  The  Sir  William  Eyre,  which,  at  the  time  of  her  departure 
from  Greenock  in  December,  1862,  was  worth  about  £8000,  was,  in 
her  unrepaired  state  at  Calcutta  in  September,  1864,  worth  about 
£3000 ;  and,  even  if  she  had  met  with  no  damage  whatever,  she 
would  have  been  off  her  letter  in  January,  1865,  and  would  .not 
have  been  worth  more  than  £4500.  A  ship  like  the  Sir  William 
Eyre  deteriorates  at  the  rate  of  12  per  cent,  per  annum. 

26.  A  list  of  the  insurances  effected  upon  the  ship  and  freight 
was  contained  in  the  appendix. 

27.  At  the  trial  no  rpaestion  was  left  to  the  jury;  a  verdict  was 

1  These  showed  an  extent  of  damage  to  freight  would  have  materially  exceeded  her 

the  ship  from  the  stranding  at  Bluff  liar-  value  when  repaired,  plus  the  homeward 

hour  so  great  that  the  cost  of  repairing  her  freight, 
so  as  to  enable  her  to  earn  the  chartered 


76  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


taken  for  the  defendant,  subject  to  leave  to  move  to  enter  it  for  the 
plaintiffs,  the  court  being  by  consent  in  place  of  the  jury,  and  hav- 
ing power  to  decide  both  law  and  fact.  Accordingly,  in  Hilary 
Term,  1867,  the  plaintiffs  obtained  a  rule  nisi  to  enter  a  verdict  for 
them,  with  interest,  on  the  ground  that  the  underwriters  were  liable 
for  the  loss  of  the  chartered  freight.  This  rule  was  in  Trinity  Term, 
1868,  discharged. 

28.  The  Court  of  Common  Pleas,  in  a  case  of  Potter  v.  Campbell, 
which  was  an  action  against  the  underwriters  on  ship,  had  decided, 
after  the  trial  of  this  case,  and  before  the  argument  of  the  rule,  that 
the  notice  of  abandonment  was  too  late.  A  copy  of  the  judgment 
in  that  case  was  set  out  in  the  appendix.1 

The  Judges  of  the  Exchequer  Chambers,  by  a  majority  (Cockburn, 
C.  J.,  Lush,  J.,  Kelly,  C.  B.,  and  Channell,  B.,  against  Cleasby,  B.), 
reversed  the  judgment  of  the  Court  of  Common  Pleas  and  ordered 
the  verdict  to  be  entered  for  the  plaintiff. 

The  defendants  having  appealed  to  the  House  of  Lords,  and  the 
case  having  been  argued  by  Benjamin  and  Cohen  for  the  appellant, 
and  by  Sir  G.  Honeyman,  Q.  C,  and  Butt,  Q.  C,  for  the  respondents, 
the  following  questions  were  put  to  the  judges :  — 

1st.  Was  there  a  loss  by  the  perils  insured  against  during  the 
term  of  the  policy  ? 

2d.  Was  notice  of  abandonment  either  of  ship  or  freight,  or  of 
both,  necessary  to  enable  the  plaintiffs  to  recover  for  a  total  loss  on 
the  policy  on  freight  ? 

3d.  If  notice  of  abandonment  was  necessary,  was  the  notice  given 
in  time  ? 

4th.  If  notice  of  abandonment  of  the  ship  was  necessary  in  order 
to  make  a  constructive  total  loss  of  the  ship  and  such  notice  was 
not  given  in  time,  does  the  want  of  due  notice  as  to  the  ship  affect 
the  right  of  the  plaintiffs  upon  the  policy  on  freight  ? 

5th.  Was  there  any  such  conduct  on  the  part  of  the  assured 
after  the  time  of  the  alleged  constructive  loss  of  the  ship  as  dis- 
charged the  underwriters  from  their  liability  upon  the  policy  on 
freight  ? 

6th.  Ought  the  judgment  to  be  for  the  appellants  or  the  re- 
spondents ? 

The  consulted  judges  who  sent  answers  to  these  questions  were 
Brett,  J.,  Mellor,  J., Blackburn,  J.,  Bramwell,  B.,  and  Martin,  B., 

1  See  16  W.  H.  399. 


SECT.  III. — WHERE   UNNECESSARY.  77 

No.  7.  —  Rankin  v.  Potter. 

and  all  of  them  except  Mr.  Baron  Martin,  answered  all  the  ques- 
tions substantially  in  favour  of  the  plaintiffs.  It  will  be  sufficient 
here  to  set  forth  the  opinion  of 

Mr.  Justice  Blackburn.  My  Lords,  your  Lordships  have  in 
this  case  proposed  six  questions  to  the  Judges,  all  of  which  I  an- 
swer in  favour  of  the  plaintiffs  in  the  cause,  who  are  the  respond- 
ents in  your  Lordships'  House.  With  your  Lordships'  permission 
I  will  first  state  generally  my  reasons  for  deciding  in  favour  of  the 
plaintiffs  on  the  merits.  [The  learned  Judge  here  gave  a  summary 
of  the  charter-party  and  policy.] 

It  is  to  be  observed  on  this  charter-party  that  it  is  a  condition 
precedent  to  the  earning  of  the  freight  that  the  Sir  William  Eyre 
should  be,  in  due  time,  at  Calcutta,  and  there  seaworthy  for  the 
voyage  from  Calcutta  to  Liverpool  or  London.  The  plaintiffs  could 
not  substitute  any  other  vessel  for  it,  and  that  being  so,  the  plaintiffs 
might  be  prevented  from  earning  that  freight  by  any  disaster 
which  befell  this  particular  ship  on  its  voyage  out  to  New  Zealand, 
or  during  its  stay  there,  or  on  the  voyage  thence  to  Calcutta,  or 
during  its  stay  there,  if  the  effect  of  that  disaster  was  to  render  it 
impracticable  to  tender  the  ship  at  Calcutta  in  due  time,  and  in  a 
seaworthy  condition  for  the  voyage  home  round  the  Cape  of  Good 
Hope;  but  that  they  had  a  vested  expectation  of  earning  this  freight, 
if  no  such  disaster  happened.  They  had  therefore  in  respect  of  this 
freight  an  insurable  interest  during  the  whole  of  the  outward 
voyage.  This  is  not,  as  I  understand,  disputed ;  but  if  authority 
is  required  for  it,  I  would  refer  your  Lordships  to  Barber  v.  Fleming, 
Law  Bep.,  5  Q.  B.  59,  and  Foley  v.  United  Marine  Insurance  Com- 
pany, Law  Bep.,  5  C.  P.  155.  Being  so  situated  they  entered  into 
the  policy.  In  my  opinion,  the  whole  merits  in  this  case  depend 
upon  the  accurate  understanding  of  the  contract  contained  in  this 
policy. 

I  must  first  observe  on  a  matter  which  is  perhaps  not  strictly 
before  your  Lordships.  It  is  stated  that  this  insurance  was  for 
£4000  on  freight  valued  at  £5000,  and  throughout  the  argument, 
and  in  the  judgments  below,  the  policy  was  treated  as  a  valued 
policy,  and  consequently  no  question  was  discussed  as  to  the 
amount  to  be  recovered,  nor  whether  the  insolvency  of  De  Mattos, 
and  the  consequent  diminution  in  value  of  the  freight  insured, 
affected  that  amount.  In  the  policy  itself,  however,  the  space 
which,  if  this  was  the  case,  ought  to  have  been  filled  up  with 


78  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


£5000,  is  left  blank,  and  the  policy  is  in  form  an  open  one.  It  is 
possible  that  the  policy  is  miscopied,  but  I  think  it  more  probable 
that  it  was  drawn  up  in  this  form  by  mistake,  and  that  the  under- 
writers, either  from  a  sense  of  honour  or  from  knowing  that  the 
contract  could  be  reformed  in  equity,  have  been  content  to  act  on 
the  contract  as  it  ought  to  have  been  drawn  up.  I  presume  your 
Lordships  would  not  like  to  put  any  obstacle  in  the  way  of  such  a 
fair  proceeding.  1  shall  therefore  make  no  farther  remark  on  the 
amount  to  be  recovered. 

The  insurance  is  "  lost  or  not  lost  at  and  from  Clyde  to  Southland, 
while  there,  and  thence  to  Otago,  New  Zealand,  and  for  thirty  days 
in  port  there,"  upon  the  Sir  William  Eyre.  And  the  subject-matter 
is  £4000  on  homeward  chartered  freight.  I  think  that  the  mean- 
ing of  this  contract  is  that  the  underwriters  are  to  indemnify  the 
assured  if  by  any  of  the  perils  insured  against  the  Sir  William  Eyre 
is,  during  the  voyage  from  the  Clyde  to  New  Zealand,  or  during 
thirty  days  after  arrival  there,  so  damaged  that,  in  consequence 
thereof,  the  homeward  chartered  freight  cannot  be  earned. 

In  the  judgment  in  the  Common  Pleas  in  this  case,  Law  Kep., 
3  C.  P.  567,  it  is  said,  "  The  policy  under  consideration  thus 
differs  from  an  ordinary  insurance  upon  freight.  First,  in  that 
it  could  not  be  affected  by  loss  of  cargo,  because  the  freight 
insured  was  not  for  cargo  in  existence  or  appropriated  during 
the  risk  ;  next,  that  it  was  not  subject  to  general  average  either 
of  ship  or  cargo,  because  the  freight  was  not  to  be  earned  during 
tin'  voyage  insured,  and,  as  a  consequence,  that  the  underwriter 
was  not  in  any  case  to  contribute  to  repairs  of  the  ship,  not 
even  in  respect  of  general  average.  And  lastly,  that  as  the 
freight  rested  in  contract  for  the  future  employment  of  the  ship 
only,  it  would  not  pass  by  bare  abandonment  to  the  underwriters 
upon  ship,  but  would  simply  come  to  nothing  upon  such  aban- 
donment if  justifiable,  because  the  abandonment  would  be  in 
effect  an  election  by  the  owner  to  treat  the  charter  as  at  an  end 
by  reason  of  the  usual  exception  of  sea  perils  in  the  charter- 
party,  and  he  would  not  be  bound  to  incur  in  favour  of  the 
underwriters  on  ship  any  new  responsibility  not  connected  with 
the  voyage  on  which  the  ship  was  insured."  So  far  I  completely 
agree,  and  instead  of  repeating  this  in  other  words  I  adopt  this 
language  as  my  own,  but  in  what  follows  in  that  judgment  I  do 
not  agree. 


SECT.  III. — WHERE    UNNECESSARY.  70 

No.  7-  —  Rankin  v.  Potter. 

I  think  that  if  there  was  damage  to  the  ship,  such  that  though 
it  was  physically  possible  to  repair  the  ship,  the  expense  would  be 
so  great  that,  according  to  the  rule  laid  down  in  Moss  v.  Smith, 
(.i  ('.  B.  104;  19  L.  J.  (C.  P.)  225,  it  was  unreasonable  so  to  do; 
the  owner  might,  as  between  him  and  the  charterer,  elect  not  to 
repair  the  ship,  but  to  treat  the  charter  as  at  an  end  by  reason 
of  the  exception  of  the  sea  perils,  and  if,  under  such  circumstances, 
the  owner  did  not  in  fact  repair,  the  freight  was  totally  lost  by 
the  perils  insured  against,  and  not,  as  stated  in  the  judgment 
in  the  Common  Pleas,  by  the  owner's  default,  for  the  owner  was 
not  bound  to  repair  the  ship.  There  would  be  no  loss  from 
the  perils  insured  against,  if  the  owner  did  in  fact  repair  the 
ship,  which,  though  not  bound  to  do  so,  he  had  a  right  to  do  if 
he  pleased. 

If,  indeed,  there  had  been  a  partial  loss  or  damage,  such  that 
the  owner  could  reasonably  repair  the  ship,  he  was  bound  to  do 
so ;  and  if  in  such  a  case  he  declined  to  do  so,  I  should  agree  with 
the  judgment  in  the  Common  Pleas,  in  saying  that  he  would  lose 
the  freight  by  his  own  choice  or  default,  and  not  by  any  peril 
insured  against.  But  I  think  that  where  the  damage  is  so  great 
that  the  owner  is  not  bound  to  repair  the  ship,  if  he  declines  to  do 
so  he  would  lose  his  freight,  not  by  his  own  default,  but  by  the 
perils  insured  against.  This  seems  an  elementary  proposition,  but 
as  much  of  what  I  consider  the  error  in  the  judgment  of  the 
Common  Pleas  arises  from  not  bearing  it  in  mind,  I  will  proceed 
to  state  some  authorities  for  it. 

The  principle  is  thus  expressed  in  the  judgment  of  the  Queen's 
Pench  in  Stringer  v.  English,  &c.  Insurance  Company,  Law  Eep., 
4  Q.  B.  691 :  "  The  assured,  if  he,  by  any  means  such  as  he  could 
reasonably  be  expected  to  use,  could  have  prevented  the  loss  " 
(which  was  in  that  case  by  a  sale  in  the  Prize  Court),  "  was  bound 
to  use  them,  and  if  the  sale  was  directly  occasioned  by  his  default, 
though  remotely  by  the  perils  insured  against "  (in  that  case,  a 
seizure),  "he  cannot  recover  against  the  underwriters.  But  the 
assured  are  not  bound  to  use  unreasonable  exertions  in  order  to 
preserve  the  thing  insured ;  and  if  the  giving  of  a  bond  or  deposit 
of  money  "  (in  the  present  case  the  repairing  of  the  ship)  "  would 
have  exposed  them  to  expense  or  risk  of  expense  beyond  the  value 
of  the  object,  or,  as  the  same  idea  is  often  expressed,  if  the  steps 
necessary  to  prevent  the   sale  "  (loss)  "  were   such   as    a  prudent 


80  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


uninsured  owner  would  not  have  adopted,  we  think  they  were  not 
in  default,  and  the  sale  was  then  a  total  loss  occasioned  by  the 
seizure." 

I  do  not  cite  this  as  conclusive,  for  it  is  for  your  Lordships  to 
determine  whether  it  is  correct  or  not,  but  as  expressing  what  I 
think  the  true  principle.  So  far  as  regards  the  case  of  a  ship,  it  is 
very  concisely  and  I  think  accurately  expressed  by  the  words  of 
my  brother  Lush,  as  already  quoted  from  his  judgment  in  the 
Court  below.     Law  Rep.,  5  C.  P.  376. 

I  must  here  observe  that,  in  my  opinion  (which  in  this  respect 
differs  from  that  expressed  in  the  judgment  of  the  Court  of  Com- 
mon Pleas  below  J,  there  might  well  be  a  state  of  things  in  which 
the  assured  could  recover  on  this  policy  for  a  total  loss  of  the 
freight,  though  the  assured  could  not,  either  with  or  without 
notice  of  abandonment,  recover  against  the  underwriters  on  ship 
for  a  total  loss.  The  questions  between  the  assured  and  the  two 
sets  of  underwriters  are  not  the  same.  The  question  between  tin- 
assured  and  the  underwriters  on  the  ship  is  whether  the  damage 
sustained  may  be  so  far  repaired  as  to  keep  it  a  ship,  though  not 
perhaps  so  good  a  ship  as  it  was  befoie,  without  expending  on  it 
more  than  it  would  be  worth.  The  question  between  the  assured 
and  the  underwriter  on  the  chartered  freight  is,  whether  the 
damage  can  be  so  far  repaired  that  the  ship  can  be  at  Calcutta, 
seaworthy  for  a  voyage  round  the  Cape  of  Good  Hope,  without  ex- 
pending on  it  more  than  it  would  be  worth.  I  should  have  added 
a  farther  term,  that  the  repairs  could  be  done  so  promptly  that 
the  ship  might  arrive  at  Calcutta  within  a  reasonable  time,  as 
between  the  shipowner  and  De  Mattes,  were  it  not  for  the  case 
of  Hurst  v.  Ushorne,  18  C.  B.  144  ;  25  L.  J.  (C.  P.)  209,  which 
seems  to  me  an  authority  against  this  position.  And  though  I 
should  not  hesitate  to  advise  your  Lordships  to  reconsider  that 
case  if  necessary,  I  think  it  is  not  necessary  so  to  do  in  the 
present  case. 

My  position  therefore  is,  that  if  the  ship  had  been  so  damaged 
that  it  could  be  brought  to  Calcutta,  and  there  made  seaworthy  for 
a  voyage  round  the  Cape,  but  not  without  expending,  say  £10,000, 
and  would  then,  all  things  considered,  be  worth  only  £9000,  but 
that  it  could  by  an  expenditure  of  £4000  be  made  a  ship  quite  fit 
for  short  voyages,  though  not  for  such  a  voyage  as  that  round  the 
Cape,  and  would  then  be  worth,  say  £51)00,  there  would  be  a  total 


SECT.  III.  —  WHERE   UNNECESSARY.  81 

No.  7.  —  Rankin  v.  Potter. 

loss  of  the  freight,  though  no  total  loss  of  the  ship.  No  notice  of 
abandonment  whatever  given  to  the  underwriters  on  ship  could 
have  converted  that  which  on  those  figures  was  only  a  partial  loss 
into  a  total  one.  This  was  decided  by  the  Exchequer  Chamber  in 
Kemp  v.  Halliday,  6  B.  &  S.  763,  a  case  which  was  not  cited  at 
your  Lordships'  bar,  but  to  which  I  venture  to  refer  your  Lord- 
ships, as  the  passages  contained  in  pages  749  to  754  of  the  report 
will  show  your  Lordships  that  the  opinions  I  now  express  are  not 
formed  for  the  first  time. 

I  now  proceed  to  consider  the  answer  to  your  Lordships'  first 
question.  That,  in  my  opinion,  depends  upon  a  question  of  fact, 
which  1  think  is  answered  by  the  very  important  addition  to  the 
case  made  during  the  argument  in  the  Exchequer  Chamber,  and 
now  contained  in  the  case  :  "  It  is  admitted  that  the  sea  damage 
which  the  ship  sustained  at  New  Zealand  during  the  time  covered 
by  the  policy  would  have  justified  an  abandonment  and  claim  for 
a  constructive  total  loss."  This  can  only  mean  that  the  damage 
to  the  ship  was  so  great,  that  the  ship  could  not  be  repaired 
without  spending  more  than  its  worth,  and  consequently  that 
the  shipowner  might  justifiably  elect  not  to  repair. 

I  think  that,  under  such  circumstances,  the  shipowner  had  a 
•right  as  against  his  underwriters  on  ship  to  come  upon  them  for  a 
total  loss.  But  if  he  does  so,  then,  on  general  principles  of  equity 
not  at  all  peculiar  to  marine  insurance,  he  who  recovers  on  a 
contract  of  indemnity  must  and  does,  by  taking  satisfaction  from 
the  person  indemnifying  him,  cede  all  his  right  in  respect  of  that 
for  which  he  obtains  indemnity.  It  was  held,  in  Mason  v.  Saiiis- 
buri/,  3  Doug.  Ed.  by  Rose  (8vo.),  61  ;  Marshall  on  Ins.  794,  that 
the  Hand-in-Hand  Insurance  Company,  having  paid  the  plaintiff 
for  a  loss  under  a  fire  policy,  was  entitled  to  recover  in  an  action 
in  his  name  against  the  hundred.  This  cession  or  abandonment  is 
a  very  different  thing  from  a  notice  of  abandonment,  though  the 
ambiguous  word,  "  abandonment,"  often  leads  to  confounding  the 
two.  There  is  no  notice  of  abandonment  in  cases  of  fire  insurance, 
but  the  salvage  is  transferred  on  the  principle  of  equity,  expressed 
by  Lord  Hardwicke  in  Randal  v.  Cochran,  1  Ves.  98,  that  "the  person 
who  originally  sustains  the  loss  was  the  owner,  but,  after  satisfac- 
tion made  to  him,  the  insurer."  In  Godsall  v.  Boldero,  9  East,  72, 
the  same  principle  was  acted  upon  in  a  case  of  life  insurance.  That 
case  was  overruled  in  Balby  v.  The  India  and  London  Life  Assu- 
vol.  i.  —  6 


82  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


ranee  Company,  15  C.  B.  365;  24  L.  J.  (C.  P.)  2,  because  the  prin- 
ciple was  misapplied  to  a  life  insurance,  which  is  not  a  contract  of 
indemnity;  but  the  principle  itself  has  never  (that  I  know  of)  been 
questioned. 

When,  therefore,  the  party  indemnified  has  a  right  to  indemnity, 
and  has  elected  to  enforce  his  claim,  the  chance  of  any  benefit 
from  an  improvement  in  the  value  of  what  is  in  existence,  and 
the  risk  of  any  loss  from  its  deterioration,  are  transferred  from 
the  party  indemnified  to  those  who  indemnify  ;  and,  therefore,  if  the 
state  of  things  is  such  that  steps  may  be  taken  to  improve  the 
value  of  what  remains,  or  to  preserve  it  from  farther  deterioration, 
such  steps,  from  the  moment  of  the  election,  concern  the  party 
indemnifying,  who  therefore  ought  to  be  informed  promptly  of  the 
election  to  come  upon  him,  in  order  that  he  may,  if  he  pleases, 
take  steps  for  his  own  protection.  And  on  general  principles  of 
law  (still  not  confined  to  marine  insurance),  an  election,  once 
determined,  is  determined  for  ever,  and  such  a  determination  is 
made  by  any  act  that  shows  it  to  be  made.  And,  therefore,  any- 
thing that  indicates  that  the  party  indemnified  has  determined  to 
take  to  himself  the  chance  of  benefit  from  an  increased  value  in 
the  part  saved,  and  only  claim  for  the  partial  loss,  will  determine 
his  election  so  to  do.  I  may  refer  for  an  exposition  of  this  general, 
principle  to  the  judgment  of  the  Exchequer  Chamber  in  Clouglt  v. 
London  and  North  Western  Railway,  Law  Rep.,  7  Ex.  34-35. 

In  cases  of  marine  insurance,  the  regular  mercantile  mode  of 
letting  the  underwriters  know  that  the  assured  mean  to  come  upon 
them  for  a  complete  indemnity,  is  by  giving  notice  of  abandon- 
ment, which  is  a  very  different  thing  from  the  abandonment  or 
cession  itself.  This  notice  when  given  is  conclusive,  that  the 
assured,  if  still  in  a  situation  to  determine  his  election,  has  deter- 
mined to  come  upon  the  underwriters  for  a  total  loss,  the  conse- 
quence of  which  is  that  everything  is  ceded  (to  avoid  the  use  of 
the  ambiguous  word  "  abandoned ")  to  the  underwriters.  Chief 
Justice  Abbott,  in  Gologan  v.  London  Assurance,  5  M.  &  S.  450, 
says,  "  I  do  not  consider  an  abandonment  as  having  the  effect  of 
converting  a  partial  into  a  -total  loss.  .  .  .  The  abandonment, 
however,  excludes  any  presumption  which  might  have  arisen  from 
the  silence  of  the  assured  that  they  still  meant  to  adhere  to  the 
adventure  as  their  own." 

If  before  giving  this  notice  the  assured  have  already  indicated 


SECT.  III.  —  WHERE    UNNECESSARY.  83 

No.  7.  —  Rankin  v.   Potter. 

by  their  acts,  or  if  the  circumstances  are  such  that  they  indicate 
by  their  silence,  that  they  have  elected  to  adhere  to  the  adventure 
as  their  own,  the  notice  of  abandonment  obviously  comes  too  late. 
A  very  good  example  of  such  a  case  is  afforded  by  Mitchell  v.  Edie, 
1  T.  R.  608,  as  explained  in  Boux  v.  Salvador,  3  Bing.  X.  C.  266. 
There  a  ship  laden  with  sugar,  and  bound  for  London,  was  captured 
and  finally  taken  into  Charleston,  where  the  sugar  was  sold  and 
the  proceeds  lodged  in  the  hands  of  a  person  resident  in  Charles- 
ton. From  the  state  of  political  affairs  at  that  time,  sugar  was 
<le.ir  at  Charleston,  and,  as  Lord  Abinger  conjectured,  the  sugar 
had  come  to  a  very  good  market,  and  the  assured  was  satisfied,  and 
took  to  the  proceeds.  A  year  afterwards,  the  person  in  whose 
hands  the  money  was,  became  insolvent,  and  after  that  it  was,  with 
obvious  justice,  held  that  it  was  too  late  to  come  upon  the  under- 
writers for  a  total  loss.  Thus  explained,  the  case  is  a  good  example 
of  the  principle  stated  in  Stringer  v.  England,  &e.  Insurance  Com- 
pany, Law  Eep.,  4  Q.  B.  688,  where  it  is  said :  "  As  is  well  pointed 
out  in  2  Phillips,  Insurance,  §  1669,  where  the  cargo  still  subsists 
in  specie,  and  may  be  recovered,  the  question  depending  on  aban- 
donment is,  which  party  should  be  at  the  risk  of  the  market  and 
the  solvency  of  agents,  neither  of  which,  independently  of  the 
direct  effect  of  the  perils  insured  against,  concerns  the  insured.  To 
allow  the  assured  to  change  his  election  whilst  the  circumstances 
remain  the  same  would  enable  the  assured  to  treat  the  property  as 
his,  so  long  as  there  was  a  prospect  of  profit  from  the  rise  in  the 
market,  and  as  the  property  of  the  insurers,  so  soon  as  there  was  a 
certainty  of  loss,  which  would  be  inequitable  :  qui  commodum  sentit 
sentire  debet  et  one*." 

I  should  apologize  to  your  Lordships  for  dwelling  so  long  on 
what  seems  to  me  the  principle  on  which  abandonment,  and  the 
necessity  of  notice  of  abandonment,  when  required,  depend,  had 
it  not  been  argued  at  your  Lordships'  bar,  on  the  authority  of 
Knight  v.  Faith,  15  Q.  B.  649,  that  there  is  a  technical  rule  of  in- 
surance law  by  which  notice  of  abandonment  must  be  given  if  the 
thing  exists  in  specie  at  all,  though  the  state  of  things  is  such  that 
the  underwriters  could  do  nothing  in  consequence  of  the  notice.  I 
think  it  more  convenient  to  postpone  my  remarks  on  that  case  till 
I  answer  your  Lordships'  last  question.  In  the  meanwhile  I  pro- 
ceed to  say  that  I  should  be  very  sorry  to  throw  any  doubt  on  the 
principle  expressed  by  Lord  Abinger  in  the  following  passage  in  his 


84  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


judgment  in  Roux  v.  Salvador,  3  Bing.  N.  C.  286,  where,  after  stating 
the  state  of  circumstances  which  give  the  insured  a  right  to  treat 
the  case  as  one  of  total  loss,  he  proceeds,  "  But  if  he  elects  to  do 
this,  as  the  thing  insured,  or  a  portion  of  it,  still  exists  and  is  vested 
in  him,  the  very  principle  of  indemnity,  that  he  should  make  a  ces- 
sion of  all  his  right  to  the  recovery  of  it,  and  that,  too,  within  a 
reasonable  time  after  he  receives  intelligence  of  the  accident,  that 
the  underwriter  maybe  entitled  to  all  the  benefit  of  what  may  still 
be  of  any  value,  and  that  he  may,  if  he  pleases,  take  measures,  at 
his  own  cost,  for  realising  or  increasing  that  value." 

But  I  think  this  is  from  the  nature  of  things  confined  to  cases 
where  there  are  some  steps  which  the  underwriters  could  take,  if 
they  had  notice.  When  they  can  do  so,  T  think  that  the  neglect 
to  give  a  notice  of  abandonment  may  determine  the  owner's  elec- 
tion. This  is  a  matter  that  is  now  of  much  greater  practical 
importance  than  it  was  when  Lord  Abinger  delivered  that  judg- 
ment. For  then  the  assured  could  not  learn  that  his  ship  had  got 
into  difficulties  at  a  distant  place  till  long  after  the  disaster,  and 
the  underwriters  could  only  send  out  orders  which  would  arrive 
later  still.  Under  such  circumstances  a  notice  of  abandonment  was 
often  a  very  idle  ceremony,  and  in  my  opinion  unnecessary,  if  the 
facts  did  amount  to  a  total  loss,  inoperative  if  they  did  not.  Now, 
when  by  means  of  the  electric  telegraph  the  underwriters'  orders 
might  promptly  reach  the  spot  where  the  ship  was  in  peril,  a 
notice  of  abandonment  may  be  of  great  practical  importance. 
What  would  be  a  reasonable  time,  and  whether  the  neglect  to  give 
notice  of  abandonment  does  determine  the  election,  must,  I  think, 
depend  in  each  case  on  the  circumstances,  and  principally  on  what 
steps  the  underwriters  might  take  if  they  had  notice.  If  there 
was  nothing  they  could  do,  no  notice  I  think  is  required.  This  I 
apprehend  is  the  principle  of  Cambridge  v.  Auderton,  2  B.  &C.  691 ; 
Roux  v.  Salvador,  3  Bing.  N.  C.  266,  and  Farnworth  v.  Hyde,  18 
C.  B.  (n.  s.)  835  ;  36  L.  J.  (C.  P.)  33  ;  Law  Rep.,  2  C.  P.  204.  For, 
as  has  often  been  observed,  a  sale  by  the  master  is  not  one  of  the 
underwriters'  perils,  and  is  only  material  as  showing  that  there  is 
no  longer  anything  which  can  be  done  to  save  the  thing  sold  for 
whom  it  may  concern.  It  conclusively  determines  that  neither 
assurers  nor  assured  can  do  anything,  and  consequently  that  a 
notice  of  abandonment  would  be  but  an  idle  form  on  which  nothing 
could  be  done,  and  which  therefore  is  unnecessary. 


SECT.  III.  —  WHERE   UNNECESSARY.  85 

No.  7.  —  Rankin  v.   Potter. 

If  these  which  I  have  submitted  to  your  Lordships  are  the  true 
principles  on  which  the  law  depends,  it  seems  to  me  to  be  obvious 
that  in  this  case  there  was  a  total  loss  of  the  freight  in  consequence 
of  the  damage  by  sea  perils  being  so  great  that  the  shipowner  was 
not  bound  to  repair  the  ship.  No  doubt  the  shipowner  might  have 
repaired  it  if  he  pleased,  and  if,  as  in  Benson  v.  Chapman,  2  H.  L.  C. 
696,  he  had  elected  to  repair  it,  and  had  done  so,  though  at  a  ruin- 
ous expense,  the  freight  would  not  have  been  lost  But  the  ship 
in  this  case  never  was  repaired  so  as  to  make  it  capable  of  earning 
the  freight,  and  the  insured  was  under  no  obligation  to  make  the 
repairs  at  a  ruinous  cost. 

This  brings  me  to  the  second  question.  I  cannot  see,  how  the 
contract  between  the  plaintiff  and  the  defendant,  by  which  the 
latter  undertakes  to  indemnify  the  former  against  the  loss  of 
the  freight,  can  be  in  any  way  affected  by  the  fact  that  the  plain- 
tiff* had  made  a  contract  with  other  persons  by  which  they  undertook 
to  indemnify  him  against  loss  on  the  ship.  If  the-  facts  are  not 
such  as  to  amount  to  a  loss  of  freight  from  the  perils  insured 
against,  no  transaction  between  the  plaintiff  and  third  persons 
could  make  them  amount  to  such  a  loss.  If  they  were  such  as  to 
amount  to  a  loss  of  the  freight  it  can  make  no  difference  to  the 
now  defendant  whether  the  plaintiff  can  or  cannot  recover  for  the 
damage  to  his  ship  from  other  persons.  It  is  true  that  a  transac- 
tion with  third  persons  may,  as  evidence,  prove  that  the  plaintiff 
had  elected  not  to  repair  the  ship,  as  the  sale  of  the  wreck  in  Cam- 
bridge v.  Anderton,  2  B.  &  C.  691,  and  in  Farmvorth  v.  Hyde,  18 
C.  B.  (n.  s.)  835  ;  36  L.  J.  (C.  P.)  33  ;  Law  Eep.  2  C.  P.  204,  did. 
And  so,  if  the  plaintiff  in  the  present  case  had  given  notice  of 
abandonment  at  once  to  the  underwriters  on  ship,  and  recovered 
from  them  as  for  a  total  loss,  it  would  have  afforded  conclusive 
evidence  that  he  had  elected  not  to  repair  the  ship.  As  it  was,  he 
delayed  so  long  that  I  think  the  fair  conclusion  of  fact  is,  that,  as 
between  him  and  the  underwriters  on  ship,  he  had  elected  to  take 
his  chance  of  doing  a  better  thing  by  keeping  it  as  a  ship  to  himself, 
and  coming  on  the  underwriters  for  a  partial  loss  only. 

I  do  not  go  into  the  facts,  as  the  question  whether  the  owner 
could  have  recovered  as  for  a  total  loss  on  the  policy  on  ship  or  not 
is  only  collaterally  raised  in  this  case,  but  in  my  opinion  they  com- 
pletely bring  the  case  within  the  principle  stated  by  Lord  Chancellor 
Oottenham    in   Fleming  v.  Smith,  1  H.  L.  C.  513,  where  he  says, 


ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


"  They  were  sufficiently  informed  of  what  had  taken  place  to  enable 
them,  if  they  thought  proper,  to  take  upon  themselves  the  chance 
of  the  benefit  of  retaining  the  ownership  of  the  property,  instead  of 
taking  the  sum  which  was  secured  to  them  by  the  policy  effected 
with  the  underwriters  on  the  vessel ;  and  if  they  acted  upon  that 
opportunity  of  election  they  surely  cannot  afterwards  turn  round 
and  go  against  the  underwriters  as  for  a  total  loss."  I  should  there- 
fore, as  at  present  advised,  have  concurred  with  the  Court  of  Com- 
mon Pleas  in  the  decision  in  Potter  v.  Campbell,  16  W.  E.  399  ; 
Printed  papers  in  the  case,  165.  But  I  think  that  this  in  noways 
affects  the  question  between  the  plaintiffs  and  the  underwriters 
on  freight.  I  agree  with  what  has  been  said  by  my  brother 
Brett;  the  plaintiffs  not  having  come  upon  the  underwriters  for 
ship  leaves  the  case  just  as  if  the  ship  had  never  been  insured 
at  all. 

This  brings  me  to  consider  whether  it  was  necessary  for  the 
plaintiffs  to  give  notice  of  abandonment  to  the  underwriters  on 
freight.  It  was  argued  at  your  Lordships'  bar  that,  by  the  law  of 
marine  insurance,  a  notice  of  abandonment  was  as  imperatively 
necessary  as  a  notice  of  dishonour  is  by  the  law  merchant  on  bills 
of  exchange.  On  this  I  shall  submit  some  observations  at  the  end 
of  this  opinion,  but  at  present  I  will  assume  that  the  true  prin- 
ciple is  that  notice  of  abandonment  is  only  requisite  when,  from  the 
state  of  facts,  it  may  make  a  difference  to  the  underwriters,  if 
the  assured  delays  making  his  election,  whether  he  will  adhere  to 
the  property,  taking  his  chance  of  profit  or  loss  from  so  doing,  or 
come  upon  the  underwriters  for  a  total  loss.  If  that  be  the  prin- 
ciple, it  seems  to  me  to  follow  from  it  that,  inasmuch  as  there  was 
nothing  which  the  underwriters  on  freight  could  have  done  to  alter 
their  position  in  consequence  of  a  notice  of  abandonment,  and  that 
it  would  have  been  an  idle  ceremony,  no  notice  could  ever  be  re- 
quired, and,  not  being  required  at  all,  could  not  be  too  late  These 
are  the  reasons  for  which  I  answer  to  your  Lordships'  second  ques- 
tion by  saying,  that  in  my  opinion  no  notice  of  abandonment  either 
of  ship  or  freight  was  necessary  to  enable  the  plaintiffs  to  recover 
for  a  total  loss  on  the  policy  on  freight. 

To  the  third  question,  that  in  my  opinion  no  notice  at  all  being 
required,  it  never  could  be  out  of  time. 

To  the  fourth  question,  that  though  1  think  that  under  the  cir- 
cumstances of  this  case  the  plaintiffs  have  precluded  themselves 


SECT.  III.  —  WHERE    UNNECESSARY.  87 

No.  7.  —  Rankin  v.  Potter. 

from  recovering  for  a  total  loss  of  the  ship,  that  in  no  way  affects 
the  rights  of  the  plaintiffs  upon  the  policy  on  freight. 

I  now  come  to  your  Lordships'  fifth  question.  From  what  I 
have  already  written  your  Lordships  will  perceive  that  in  my 
opinion  the  decision  of  the  case  really  should  depend  on  the  answer 
to  this  question.  I  have  already  indicated  that  1  think  that  the 
assured  so  conducted  themselves  as  to  discharge  the  underwriters 
on  ship  from  the  liability  for  a  total  loss,  for  the  assured  took  to 
themselves  the  chance  of  benefit  from  retaining  the  ship  as  their 
own,  and  so  made  their  election  as  to  the  ship.  But  as  to  the 
freight,  I  can  see  nothing  which  could  have  been  done  by  the 
underwriters  if  the  idle  ceremony  of  a  notice  had  been  gone 
through.  It  was  indeed  suggested  that  the  underwriters  on  freight 
miff  lit  have  made  some  arrangements  with  the  underwriters  on 
ship,  by  which  they  were  to  repair  the  ship,  send  her  on,  and  in 
the  name  of  the  owners  tender  her  to  De  Mattos.  But  in  all  cases, 
and  especially  in  cases  of  insurance,  we  look  to  what  is  practically 
possible,  and  not  to  remote  theoretical  imaginations.  If  it  could  be 
shown  that  the  delay  in  this  case,  which  was  certainly  considerable, 
had  in  any  way  altered  the  position  of  the  underwriters,  if  there 
was  anything  which  they  could  have  done  if  the  claim  had  been 
made  on  them  at  the  time  when  the  disaster  happened  at  New  Zea- 
land, or  in  the  interval,  which  they  cannot  now  do,  or  if  any  pre- 
judice had  been  sustained  by  them  in  consequence  of  the  delay,  the 
case  would  be  different.  I  should  then  have  to  consider  whether 
the  prejudice  sustained  was  sufficient  to  give  rise  to  a  preclusion. 
Hut  as  the  facts  are,  there  is  nothing  of  the  sort.  I  therefore 
answer  your  Lordships'  fifth  question  by  saying  that  in  my  opinion 
there  was  no  such  conduct  as  to  discharge  the  underwriters  from 
their  liability  upon  the  policy  on  freight. 

The  answers  to  those  five  questions  would  answer  the  sixth  and 
last,  were  it  not  that  I  have  reserved  to  this  time  the  discussion  of 
the  proposition  argued  at  your  Lordships'  bar,  that  there  is  a  tech- 
nical necessity  for  a  notice  of  abandonment  in  a  case  of  marine 
insurance,  whether  any  use  can  be  made  of  it  or  not,  and  whether 
the  failure  to  give  it  wTorks  any  prejudice  or  not.  It  was  said  it 
was  required  by  the  law  merchant  as  to  insurance,  just  as  notice  of 
dishonour  is  required  by  the  law  merchant  on  a  bill  of  exchange. 

Such  is  the  law  in  some  foreign  countries,  but  I  will  submit  to 
your  Lordships  my  reasons  for  thinking  that  it  is  not  and  never 


88  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


was  the  law  of  England.  Enierigon,  in  the  first  section  of  the 
17th  chapter  of  his  celebrated  Treatise  on  Insurance,  vol.  ii., 
ed.  by  Boulay  Paty,  1837,  ch.  xvii.,  §  1,  p.  207,  states  that  by 
the  general  law  merchant,  or  as  he  calls  it  "  le  droit  des  nations," 
there  was  no  need  for  any  notice  of  abandonment,  the  contract 
being  one  of  indemnity  only.  I  do  not  pretend  to  have  made  any 
research  myself  as  to  what  was  the  ancient  law  merchant,  but  from 
Emerigon's  high  character  for  learning  and  research  I  assume  that 
he  is  correct.  He  then  proceeds  to  say  that  the  law  merchant  did 
not  prohibit  persons  from  making  a  stipulation  that  under  certain 
stipulated  circumstances  the  subject-matter  of  the  assurance  might 
be  abandoned  to  the  underwriters,  who  then  should  pay  the  whole 
sum  assured,  without  having  any  option  merely  to  indemnify  the 
assured.  And  he  observes  that  doubtless  the  usual  clauses  to  that 
effect  gave  rise  to  established  rules  on  the  subject.  He  then  cites 
(p.  208)  from  Casaregis'  three  rules,  which  Emerigon  seems  to  con- 
sider as  truly  stating  the  law  merchant  on  the  subject.  They  are  as 
follows:  1.  That  abandonment  is  a  formality  which  is  sufficiently 
complied  with  by  the  simple  fact  that  the  assured  demands  from 
the  assurers  payment  of  the  whole  sum  insured.  2.  That  the 
assured  may,  without  having  recourse  to  abandonment,  recover  the 
salvage,  and  claim  payment  from  the  assurers  of  an  average  loss 
only.  3.  That  in  case  of  total  loss  abandonment  is  an  idle  form, 
"  le  delaissement  est  uneformalite  inutile."  The  editor  of  Emerigon 
observes  in  a  note  that  the  first  and  third  of  those  rules  are  not  the 
law  of  France  at  this  day.  And  Emerigon  points  out  that  all  this 
was  in  France  (and,  in  consequence,  in  those  countries  which  have 
adopted  the  French  law)  altered  by  the  positive  enactments  con- 
tained in  the  celebrated  Ordonnance  de  la  Marine  of  1681,  by  the 
46th  article,  of  which  it  was  enacted  that  "  No  abandoment  shall  be 
made  except  in  case  of  capture,  shipwreck,  '  bris,'  '  breaking  up,' 
stranding,  arrest  of  princes,  or  total  loss  of  the  things  assured,  and 
that  all  other  losses  shall  be  deemed  average  losses  only."  On 
this  Enierigon  treats  at  great  length  in  the  following  sections  of 
the  17th  chapter. 

There  seems  to  have  been  at  first  much  controversy  and  dispute 
as  to  the  true  effect  of  the  enactment,  but  it  seems  to  have  been 
finally  settled  in  France  that  the  assured  could  never  recover  for  a 
total  loss  without  abandonment,  even  though  the  thing  assured  was 
totally  destroyed.      "  Such,"  says  Emerigon,  vol.  ii.,  ch.  xvii,  §  6, 


SECT.  III.  —  WHERE    UNNECESSARY.  89 

No.  7.  —  Rankin  v.  Potter. 

p.  232,  "  is  the  enactment  of  our  ordonnance,  to  which  we  must 
submit."  And  it  was  farther  established  that  when  any  of  the 
events  specified  in  the  46th  article  had  happened,  the  assured 
might  by  giving  notice  of  abandonment  recover  for  a  total  loss, 
though  the  thing  insured  was  quite  safe  and  uninjured.  This 
Emerigon  justifies,  or  at  least  accounts  for,  by  saying  that  the 
ordonnance  created  a  presumption,  which  was  juris  et  de  jure, 
that  where  any  of  the  first  five  cases  had  happened  the  thing 
was  lost.  This  was  carried  so  far  that  where  a  ship  was  stranded 
and  got  off  without  injury  either  to  itself  or  cargo,  the  owners 
of  the  cargo  were  permitted  to  give  notice  of  abandonment  and 
recover  as  for  a  total  loss.  This  highly  artificial  conclusion  was 
corrected  by  a  supplemental  ordonnance  of  1779,  but  till  then  it 
remained  the  French  law.     Emerigon,  vol.  ii.,  §  2,  p.  212. 

Now,  the  enactments  of  the  French  law,  contained  in  the  Ordi- 
nance of  the  Marine,  can  have  no  force  in  England,  except  in  so 
far  as  they  have  been  adopted  into  our  law.  As  far  as  regards  the 
law  that  by  giving  notice  of  abandonment  the  assured  can  recover 
for  a  total  loss,  because  by  a  presumption  juris  et  de  jure  the  prop- 
erty is  to  be  taken  as  lost  in  law,  though  it  is  safe  in  fact,  it  cer- 
tainly is  not  the  law  of  England,  and  never  was.  In  Hamilton  v. 
Mendes,  2  Burr.  1198,  Lord  Mansfield  strongly  laid  down  the  doc- 
trine that  a  policy  of  marine  insurance  is  a  contract  of  indemnity, 
and  that  "  if  the  thing  in  truth  was  safe,  no  artificial  reasoning 
shall  be  allowed  to  set  up  a  total  loss." 

No  one  would  for  a  moment  now  venture  to  contend  that  a  notice 
of  abandonment  could  in  England  entitle  an  assured  to  recover  as 
for  a  total  loss  on  a  policy  on  goods  if  the  ship  was  captured,  though 
set  free,  or  wrecked  but  the  cargo  saved  uninjured,  or  in  a  case  of 
simple  stranding.  So  far  the  law  of  the  Ordonnance  is  clearly  not 
adopted  in  England.  Even  in  the  case  where  the  loss  is  at  the 
time  of  the  notice  of  abandonment  total,  though  capable  of  being 
reduced  by  a  change  of  circumstances  to  a  partial  loss,  the  assured 
(unless  in  the  very  uncommon  case  of  the  notice  being  accepted) 
cannot  recover  as  for  a  total  loss  if  that  change  of  circumstances 
does  occur  before  the  trial.  Dean  v.  Hornby,  3  El.  &  Bl.  180.  Nor 
can  it  be  for  a  moment  contended  that  a  notice  of  abandonment  is 
essential  to  the  assured's  right  to  recover  for  a  total  loss  where  the 
loss  is  in  fact  total. 

But  though  in  no  one  of  these  cases  has  the  French  enactment 


90  ABANDONMENT. 


No.  7.    -  Sankin  v.  Potter. 


been  adopted  in  the  English  law,  it  is  argued  that  it  has  been  so 
adopted  as  in  the  case  of  what  is  called  a  constructive  total  loss,  to 
render  a  notice  of  abandonment  a  necessary  technical  preliminary 
to  an  action  for  the  total  loss,. though  it  is  not  required  for  any  use- 
ful purpose,  though  no  prejudice  has  been  sustained  for  want  of  it, 
though  the  loss  at  the  time  of  the  trial  still  continues  total,  and 
though,  according  to  Casaregis,  as  cited  and  approved  of  by  Emerigon, 
the  law  merchant  looked  on  the  notice,  of  abandonment  in  case  of 
total  loss  as  being  "  une  formalite  inutile." 

It  is  unnecessary  to  refer  to  any  English  decisions  prior  to  the 
great  case  of  Boux  v.  Salvador,  1  Eing.  N.  C.  526,  reversed  in  error, 
3  Bing.  N.  C.  266.  All  the  authorities  bearing  on  the  point  were,  I 
believe,  cited  and  considered  in  the  elaborate  judgments  delivered 
in  that  case;  and  the  decision  of  the  Court  of  Exchequer  Chamber 
was  that  no  notice  of  abandonment  was  necessary,  because,  as  is 
.stated  by  Lord  Abinger,  3  Bing.  K  C.  281,  "Neither  the  assured 
nor  the  underwriters  could  at  the  time  when  the  intelligence  arrived 
exercise  any  control  over  the  goods,  or  by  any  interference  alter 
the  consequences." 

It  may  be,  however,  convenient  to  refer  your  Lordships  to  the 
portion  of  Mr.  Phillips'  Treatise  on  Insurance  in  which  he  treats  on 
this  subject.  I  know  of  no  text  writer  who  treats  the  law  of  insur- 
ance with  more  learning,  and  certainly  of  none  who  treats  it  with 
as  much  sound  sense  and  appreciation  of  the  bearing  of  the  doc- 
trines laid  down  on  practical  business.  It  is,  however,  to  be  borne 
in  mind  that  he  writes  in  America,  and  that,  as  he  clearly  states 
(3rd  ed.,  vol.  ii.,  §  1536,  p.  271),  "  It  is  a  general  rule  in  the  United 
States,  that  if  the  ship  or  goods  insured  are  damaged  to  more  than 
half  of  the  value  by  any  peril  insured  against,  or  more  than  half  the 
freight  is  lost,  the  assured  may  abandon  and  recover  for  a  total  loss." 
He  adds,  "This  rule  of  abandonment  on  account  of  loss  of  over  fifty 
per  cent,  of  the  value  of  the  subject  makes  the  most  material  differ- 
ence between  the  American  and  English  jurisprudence,  relative  to 
total  loss  and  abandonment,  and  is  to  be  kept  in  mind  in  examining 
the  decisions  of  the  tribunals  of  the  two  countries.  This  rule,  and 
that  rule  in  the  United  States,  whereby  the  validity  of  the  aban- 
donment is  tested  by  the  circumstances  existing  at  the  time  of 
making  it,  instead  of  the  time  of  bringing  the  suit,  as  in  England, 
give  a  wider  range  to  constructive  total  loss  and  abandonment  in 
the  United  States." 


SECT.  III.  —  WHERE    UNNECESSARY.  9] 

No.  7.  —  Rankin  v.  Potter. 

Bearing  this  distinction  in  mind,  any  one  who  wishes  to  under- 
stand this  subject  will  derive  great  assistance  from  perusing  the 
whole  of  Mr.  Phillips'  17th  chapter  on  total  loss  and  abandon- 
ment. I  will  only  refer  your  Lordships  to  §  1491,  where  he  says, 
"An  abandonment  being  a  transfer,  it  can  be  requisite  only  where 
there  is  some  assignable  transferable  subject  on  which  it  can  oper- 
ate." "When  nothing  remains  to  be  assigned  or  transferred,  an 
abandonment  is  useless  and  unnecessary."  And  to  $  1494,  where 
he  observes,  "But  the  better  rule  in  such  case  is  that  if  the  insured 
neglects  to  abandon,  he  shall  recover  only  according  to  the  state  of 
things  at  the  trial ;  since,  as  we  shall  see,  under  a  declaration  for  a 
total  loss  he  may  recover  for  a  partial  loss,  and  the  underwriter 
■ought  to  have  the  advantage  of  whatever  may  occur  to  make  the 
loss  partial  so  long  as  the  assured  delays  to  elect  a  total  loss.  If 
he  has  judgment  for  a  total  loss,  this  is  equivalent  to  an  abandon- 
ment, and  gives  the  underwriter  a  right  to  salvage."  And  to  §  1497, 
where  he- says,  "The  distinction  mentioned  above  as  to  recovering 
a  total  loss  without  abandonment  is  to  be  observed,  viz.,  that  the 
assured  is  charged  with  the  proceeds  in  the  adjustment  of  the  loss 
as  in  a  salvage  loss,  though  the  same  may  not  have  actually  come 
to  his  hands.  This  circumstance  being  borne  in  mind  will  reconcile 
most  of  the  decisions  on  this  subject,  which  otherwise  would  appear 
to  be  directly  contradictory,  according  to  the  language  commonly 
used  by  the  courts,  which  must,  however,  be  construed  in  reference 
to  one  or  the  other  description  of  case  under  consideration."  Your 
Lordships  will  appreciate  the  shrewdness  of  the  latter  part  of  this 
remark  if  you  examine  the  various  dicta  cited  in  Roux  v.  Salvador, 
?,  Bing.  N.  C.  266,  and  Knight  v.  Faith,  15  Q.  B.  649. 

To  return  to  the  English  authorities,  the  decision  of  the  Court  of 
Exchequer  Chamber  in  Roux  v.  Salvador,  supra,  was,  as  far  as  I 
can  learn,  received  with  general  approbation  at  the  time.  There  was, 
however,  one  exception.  Lord  Campbell  never  could  be  brought 
to  think  it  right.  In  the  case  of  Fleming  v.  Smith,  1  II.  L.  C.  513, 
the  counsel  for  the  appellants  (the  Attorney-General  Jervis,  and  Sir 
F.  Thesiger,  argued,  as  I  think,  logically,  from  the  decision  in  Roux 
v.  Salvador,  supra,  that  notice  of  abandonment  could  not  be  in  nnv 
case  required  except  where  there  was  something  which  could  be 
done  by  the  underwriters  in  consequence;  and  then  the  failure  to 
give  notice  of  abandonment  might  be  material  as  determining  the 
•election  which  the  assured  had,  whether  to  treat  the  loss  as  total 


92  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


or  not.  This,  as  I  have  already  stated  to  your  Lordships,  is  what 
I  consider  to  be  the  law.  Lord  Campbell  was  of  a  different  opinion, 
and  in  his  opinion  says,  "  The  law  therefore  requires  that  notice 
shall  be  given  in  order  to  convert  a  constructive  into  a  total  loss ; " 
but  though  that  was  his  opinion,  it  was  not  the  judgment  of  the 
House  of  Lords.  Lord  Cottenham,  Chancellor  (and  Lord  Brougham 
concurred  in  his  opinion),  carefully  puts  the  decision  exclusively  on 
the  ground  that  the  assured  had  in  fact  elected  to  treat  the  loss  as 
a  partial  loss  only.  This  studied  silence  on  his  part  may  prevent 
us  from  saying  that  he  differed  from  Lord  Campbell,  but  he  certainly 
did  not  express  any  concurrence  with  him. 

After  this  in  the  Queen's  Bench,  when  Lord  Campbell  was  Chief 
Justice,  there  arose  the  case  of  Knight  v.  Faith,  15  Q.  B.  649.  The 
manner  in  which  that  judgment  came  to  be  delivered  was  very 
peculiar.  There  was  a  very  brief  case  stated  for  the  opinion  of  the 
Court  of  Queen's  Bench.  On  the  statements  in  it  the  court  came 
to  the  conclusion,  as  stated  in  the  judgment,  that  "  slight  repairs 
might  have  been  sufficient  again  to  fit  the  ship  for  navigation,"  and 
the  court  said,  ibid.  657,  that  though  the  ship  was  sold, "  we  are  of 
opinion  that  as  against  the  insurers  the  sale  is  not  shown  to  be  law- 
ful." On  such  facts  the  assured  could  never  have  recovered  for  a 
total  loss,  even  if  he  had  delivered  all  possible  notices  of  abandon- 
ment from  the  first  to  last.  Yet  the  court  forced  the  counsel  to 
amend  the  case  by  inserting  a  statement  that  no  notice  of  abandon- 
ment was  given,  and  pronounced  an  elaborate  judgment  on  a  point 
which  it  was  wholly  unnecessary  to  notice,  except  for  the  purpose 
of  recording  dissent  from  the  decision  of  the  Exchequer  Chamber 
in  Roux  v.  Salvador,  3  Bing.  N.  C.  266.  It  should,  in  candour, 
however,  be  added  that  the  other  judges  of  the  court  joined  Lord 
Campbell  in  this.  Still  I  think  that  the  fact  that  a  judgment  was 
not  necessary  for  the  decision  of  the  case  before  the  court  always 
diminishes  its  authority.  And  I  think  that,  on  perusing  the  judg- 
ment in  Knight  v.  Faith,  15  Q.  B.  649,  it  will  be  found  that  no 
argument  is  produced  which  had  not  been  used  in  Roux  v.  Salvador. 
supra,  and  that  no  new  authority  is  produced  except  Lord  Campbell's 
own  opinions  in  Fleming  v.  Smith,  I  H.  L.  C.  513,  and  a  passage 
from  the  judgment  of  Lord  Chancellor  Cottenham  in  Stewart  v. 
The  Greenock  Marine  Assurance,  2  H.  L.  C.  159. 

The  question  in  that  latter  case  was,  what  passed  to  the  under- 
writers on  ship,  who  were  liable  for  a  total  loss  of  ship.     They 


SECT.  III.  —  WHERE    UNNECESSARY.  93 

No.  7.  —  Rankin  v.  Potter. 

raised  the  very  question  alluded  to  in  the  §  1497  of  Phillips  already 
cited.  The  ship  having  been  fatally  injured  just  before  it  entered 
the  docks,  but  kept  together  as  a  ship  so  that  it  entered  the  ducks, 
delivered  the  cargo,  and  so  earned  freight,  and  the  underwriters  on 
ship  said  they  were  entitled  as  salvage  to  the  freight  thus  earned 
aftei  the  disaster.  This  House  decided  that  they  were  entitled  In 
tin's  benefit,  on  the  precise  principle  long  before  laid  down  in  Randal 
v.  Cochran,  1  Ves.  98,  and  the  other  cases  I  referred  to  in  the  begin- 
ning of  this  opinion,  that  the  plaintiff's,  "claiming  as  upon  a  total 
loss,  must  give  up  to  the  underwriters  all  the  remains  of  the  prop- 
erty recovered,  together  with  all  the  benefit  and  advantage  belong- 
ing or  incident  to  it."  But  I  cannot  see  how,  or  in  what  way,  the 
assertion  of  the  doctrine  that  recovering  for  a  total  loss  operates  as 
a  cession  of  everything,  can  be  said  to  amount  to  the  assertion  of 
that  other  doctrine  that  the  handing  in  of  a  notice  of  abandonment 
is  a  condition  precedent  to  the  right  to  claim  for  a  total  loss.  And 
as  it  seems  to  me  every  dictum  cited  in  Knight  v.  Faith,  15 
Q.  B.  649,  is  capable  of  being  reconciled  with  the  judgment  of  the 
Exchequer  Chamber  in  Roux  v.  Salvador,  3  Bing.  N.  C.  266,  if  it  is 
only  borne  in  mind  that  the  abandonment  or  cession  consequent  on 
recovering  for  a  total  loss  is  one  thing;  the  notice  of  abandonment, 
supposed  to  be  a  condition  precedent  to  claiming  for  a  total  loss,  is 
another.  I  have  dwelt  on  this  point  at  perhaps  unnecessary  length, 
for  all  that  it  is  necessary  to  decide  in  this  case  is  that  where  there 
is  nothing  to  abandon  no  notice  is  requisite. 

I  have  therefore  to  conclude  by  saying,  in  answer  to  your  Lord- 
ships' last  question,  that  in  my  opinion  judgment  ought  to  be  for 
the  plaintiffs  in  the  cause,  the  respondents  in  your  Lordships' 
House. 

1873.  May  5.  On  the  final  consideration  by  the  House  the 
judgment  of  the  Court  of  Exchequer  Chamber  (in  favour  of  the 
plaintiff's)  was  affirmed  and  the  appeal  dismissed  with  costs. 

Lord  Chelmsford.  My  Lords,  this  is  a  case  of  some  novelty, 
and  from  the  difference  of  opinion  which  has  existed  upon  it 
amongst  the  Judges  must  be  regarded  as  not  entirely  free  from 
difficulty. 

The  action  is  upon  a  policy  of  insurance  upon  freight,  to  be  earned 
by  a  ship  called  the  Sir  William  Eyre,  of  which  the  plaintiffs  were 
owners  as  mortgagees  under  a  charter-party  entered  into  with  one 
De  Mattos  on  the  9th  of  February,  1863,  by  which  it  was  agreed 


94  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


that  the  ship  should  proceed  to  New  Zealand  with  a  cargo  for  the 
owners'  benefit,  and  having  arrived  and  discharged  the  same,  and 
being  made  tight,  staunch,  and  strong,  and  every  way  titted  for  the 
voyage,  should  proceed  to  Calcutta,  and  there  being  tight,  staunch, 
and  strong,  and  every  way  fitted  for  the  voyage,  should  load  from 
the  factors  of  the  freighter  a  full  and  complete  cargo,  and  convey 
it,  for  certain  stipulated  freight,  to  Liverpool  or  London. 

The  policy  of  insurance  is  "  lost  or  not  lost  at  and  from  Clyde  to 
Southland,  while  there,  and  thence  to  Otago,  New  Zealand,  and  for 
thirty  days  in  port  there  after  arrival."  The  subject  of  the  insur- 
ance is  "  £4000  on  homeward  chartered  freight." 

The  Sir  William  Eyre  arrived  at  Bluff  Harbour,  Southland,  on 
the  23d  of  April,  1863.  While  there  she  drifted  and  took  the 
ground,  and  remained  aground,  floating  at  intervals,  till  the  29th  of 
May.  On  that  day  a  violent  gale  arose,  and  again  the  ship  took 
the  ground,  and  remained  fixed  till  the  4th  of  June.  After  that 
she  grounded  again,  and  was  not  finally  got  off  till  the  1st  of  July, 
when  she  left  for  Dunedin  ;  and  she  arrived  at  Port  Chalmers, 
which  is  the  port  of  Dunedin,  on  the  4th  of  July.  Surveys  were 
held  on  her  at  Bluff  Harbour,  and  also  at  Port  Chalmers  ;  but  in 
neither  of  these  places  could  the  extent  of  the  damage  sustained 
by  her  grounding  be  ascertained,  as  it  was  necessary  for  that  pur- 
pose that  she  should  be  taken  into  a  dry  dock,  or  put  on  a  patent 
slip,  neither  of  which  existed  in  New  Zealand,  nor  was  to  be  found 
anywhere  nearer  than  Port  Sydney. 

While  the  Sir  William  Eyre  remained  at  Port  Chalmers  the 
captain  permitted  her  to  be  stored  with  coals,  for  which  he  re- 
ceived a  rent. 

In  February,  1864,  the  captain  received  funds,  by  means  of  which 
he  had  certain  repairs  done  which  had  been  recommended  by  the 
surveyors,  to  enable  the  ship  to  proceed  in  ballast  to  Calcutta.  On 
the  14th  of  April,  1864,  these  repairs  having  been  completed,  the 
Sir  William  Eyre  left  Port  Chalmers,  and  she  arrived  at  Calcutta 
on  the  7th  of  June,  1864. 

Upon  her  arrival  the  master  applied  to  the  agents  of  De  Mattos 
to  carry  out  the  charter-party.  They,  however,  had  received  infor- 
mation that  De  Mattos  had  failed  and  stopped  payment  in  Decem- 
ber, 1863,  and  they  refused  to  have  anything  to  do  with  the  ship, 
or  with  providing  a  cargo. 

The  Sir  William  Eyre  was  then  put  into  dry  dock  and  surveyed, 


SECT.  III.  —  WHERE    UNNECESSARY.  95 


No.  7.  —  Rankin  v.  Potter. 


and  it  was  discovered  that  the  damage  she  had  sustained  in  New 
Zealand  was  much  greater  than  had  been  supposed,  and  that  the 
cost  of  repairing  her  would  exceed  her  value  after  being  repaired. 
Whereupon,  in  the  month  of  August,  1864,  the  plaintiffs  gave  notice 
<>f  abandonment  to  the  defendant,  the  underwriter  on  freight,  and 
a  similar  notice  was  given  by  them  to  the  underwriters  on  ship  ; 
but  neither  of  the  notices  was  accepted  by  the  underwriters. 

Upon  the  argument  of  the  case  in  the  Court  of  Common  Pleas 
it  was  held  that  the  plaintiffs  were  not  entitled  to  recover,  on  the 
ground  that  there  was  no  absolute  loss  of  the  ship,  and  conse- 
quently no  total  loss  of  the  freight ;  and  that  the  notice  of  aban- 
donment which  was  necessary  to  convert  a  partial  into  a  total  loss 
was  not  sufficient.  Upon  appeal  to  the  Court  of  Exchequer 
Chamber,  the  judgment  of  the  Court  of  Common  Pleas  was  re- 
versed, on  the  ground  that  the  loss  of  the  freight  was  not  a  partial 
loss,  but  one  that  was  total  and  absolute. 

Two  of  the  Judges  in  the  Exchequer  Chamber  expressed  an 
opinion  that  supposing  it  to  be  doubtful  whether,  if  no  notice  of 
abandonment  of  either  ship  or  freight  had  been  given,  the  under- 
writers on  freight  would  have  been  liable,  yet  as  notice  of  aban- 
donment was  in  fact  given  to  the  underwriters  on  the  ship,  and 
was  clearly  in  their  opinion  given  in  sufficient  time,  the  ship  be- 
longed to  the  underwriters,  and  it  therefore  became  impossible  for 
the  owners  to  earn  the  chartered  freight,  of  which  there  was  conse- 
quently an  actual  and  not  merely  a  constructive  total  loss. 

Upon  this  appeal  from  the  judgment  of  the  Exchequer  Chamber 
the  questions  raised  were  — 

1st.  Whether  there  was  an  actual  total  loss  of  the  chartered 
freight  by  perils  insured  against  during  the  term  of  the  policy  ? 

2d.  Whether  notice  of  abandonment  either  of  ship  or  freight, 
or  both,  was  necessary  to  enable  the  plaintiffs  to  recover  for  a  total 
loss  on  the  policy  on  freight  ? 

3d.  If  notice  of  abandonment  was  necessary,  whether  the  notice 
was  given  in  time  ? 

4th.  Whether  the  conduct  of  the  plaintiffs,  the  owners  of  the 
ship,  after  the  time  of  the  injury  sustained  by  her  at  New  Zealand, 
was  such  as  to  discharge  the  underwriters  from  their  liability  upon 
the  policy  on  freight  ? 

First,  upon  the  question  as  to  the  loss  of  the  freight,  it  is  neces- 
sarv  to  bear  in  mind  the  exact  nature  of  the  insurance.  The  freight 


9G  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


insured  is  chartered  freight  upon  a  cargo  to  be  loaded  on  board  the 
Sir  William  Eyre,  at  Calcutta,  and  to  be  conveyed  to  Liverpool  or 
London.  The  voyage  insured  is  a  voyage  "  at  and  from  Clyde  to 
Southland,  while  there,  and  thence  to  Otago,  New  Zealand,  and 
for  thirty  days  in  port  there,  after  arrival."  In  other  words,  it  is 
an  insurance  that  the  assured  shall  not  be  prevented  earning  the 
freight  under  the  charter-party  by  any  perils  of  the  sea  which  might 
happen  on  the  voyage  from  Clyde  to  Otago,  and  for  thirty-  days 
afterwards.  As  this  outward  voyage  is  entirely  distinct  from  that 
on  which  the  freight  was  to  be  earned,  and  as  no  right  to  such 
freight  could  possibly  accrue  until  the  arrival  of  the  Sir  William 
Eyre  at  Calcutta,  the  loss  of  freight  could  only  happen  by  such 
damage  to  the  ship  by  the  perils  of  the  sea  during  the  time  covered 
by  the  policy  as  would  prevent  the  assured  from  earning  the  char- 
tered freight  on  the  voyage  from  Calcutta  to  England. 

It  is  admitted  that  the  sea  damage  which  the  ship  sustained  at 
New  Zealand,  during  the  time  covered  by  the  policy,  was  such  as 
would  have  justified  an  abandonment,  and  a  claim  for  a  construc- 
tive total  loss.  The  owners  might,  if  they  pleased,  have  repaired 
the  ship,  and  she  might  have  been  sent  to  Calcutta  in  a  fit  state 
for  a  voyage  from  thence  to  England.  But  they  merely  effected 
temporary  repairs  sufficient  to  enable  the  ship  to  reach  Calcutta  ; 
and  on  her  arrival  there  a  survey  disclosed  the  extensive  nature  of 
the  injuries  which  she  had  sustained  in  New  Zealand,  and  the 
consequent  impossibility  of  her  performing  the  homeward  voyage 
without  such  an  amount  of  repairs  as  would  have  cost  more  than 
what  her  value  would  have  been  when  repaired.  Upon  this  fact 
being  ascertained,  notice  of  abandonment  was  given  to  the  under- 
writers, which,  if  sufficient,  would  have  entitled  the  shipowners  to 
recover  for  a  total  loss. 

Upon  these  facts  and  circumstances  the  first  question  arises, 
Was  there  a  total  loss  of  the  freight  during  the  period  covered  by 
the  policy  ? 

In  determining  this  question,  I  think  it  right  to  leave  out  of 
consideration  the  fact  of  the  insolvency  of  De  Mattos  before  the 
arrival  of  the  ship  at  Calcutta,  because,  although  one  of  the  learned 
Judges  whose  assistance  your  Lordships  had  upon  the  hearing  of 
the  appeal,  delivered  an  opinion  that  "  the  freight  was  not  lost  by 
perils  of  the  sea,  but  that  the  proximate  and  direct  cause  of  its 
loss  was  the  non-existence  of  cargo,"  it  appears  to  me  that  this  is 


SECT.  III.  —  WHERE    UNNECESSARY.  97 

No.  7.  —  Rankin  v.  Potter. 

not  a  correct  view  of  the  case.  Between  the  underwriters  and  the 
assured  on  freight  the  question  is,  whether  the  ship  had  sustained 
such  damage  in  New  Zealand  as  to  prevent  her  arriving  at  Cal- 
cutta in  such  a  state  of  seaworthiness  as  would  enable  her  to  be 
tendered  to  the  charterer  in  the  terms  of  the  charter-party,  as  being 
"  tight,  staunch,  and  strong,  and  every  way  fitted  for  the  voyage  " 
to  England.  Upon  this  question  it  is  obviously  immaterial  whether 
a  cargo  would  have  been  provided  at  Calcutta  or  not.  The  loss  for 
which  the  underwriters  are  liable  (if  at  all)  cannot  depend  upon 
such  a  contingency  ;  and  if  it  could,  it  must  be  observed  that  their 
liability  attached  long  before  the  insolvency  of  De  Mattos,  which 
happened  in  December,  1863,  months  after  the  ship  had  sustained 
the  sea  damage  for  which  the  claim  upon  the  underwriters  is 
made. 

In  the  arguments  the  counsel  for  the  appellant  complicated  the 
question  by  introducing  the  consideration  of  the  conduct  of  the 
plaintiffs  with  reference  to  the  policy  on  the  ship,  as  bearing  upon 
their  rights  under  the  policy  on  freight.  It  appears  to  me  that 
this  cannot  properly  be  done  in  this  case,  where  the  injury  to  the 
ship  was  practically  not  reparable.  The  contracts  are  entirely 
independent  of  each  other,  and  between  different  parties.  The 
rights  and  liabilities  under  the  policy  on  freight  ought  to  be  deter- 
mined without  reference  to  what  may  have  been  done,  or  omitted 
to  be  done,  by  the  assured  on  a  policy  on  the  ship  upon  which  his 
rights  under  that  policy  may  depend. 

A  plain  and  clear  view  upon  the  facts  and  circumstances  of  the 
case  can  only  be  obtained  by  removing  the  policy  on  the  ship  out 
of  the  way,  and  looking  at  the  case  as  if  there  were  no  other  policy 
in  existence  but  that  on  freight.  Under  this  policy,  it  seems  to 
me  that  the  only  question  is  whether,  by  the  perils  of  the  sea,  the 
ship  was  so  damaged  at  New  Zealand,  during  the  term  of  the  policy, 
as  to  be  rendered  incapable,  unless  sufficiently  repaired,  of  per- 
forming the  voyage  from  Calcutta  to  England,  for  which  she  was 
chartered.  Upon  that  subject  it  appears,  from  the  admission  to 
which  I  have  already  adverted,  that  the  sea  damage  was  such  as 
would  have  justified  an  abandonment  and  claim  for  a  constructive 
total  loss.  By  this  I  understand  that  the  amount  of  damage  was 
such  that  a  prudent  uninsured  owner  would  not  have  incurred  the 
expense  of  repairing  the  ship.  And  this  appears  clearly  from 
a  farther  admission  stated  in  the  report  of  this  case  in  the  Court 
VOL.  i.  —  7 


98  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


of  Common  Pleas,  Law  Kep.,  5  C.  P.  351,  viz.,  that  the  cost  of  re- 
pairing the  vessel  at  Calcutta,  so  as  to  make  her  seaworthy  for 
carrying  a  cargo  to  England,  would  have  exceeded  the  value  of  the 
ship  when  repaired,  plus  the  difference  between  the  chartered  freight 
and  the  current  freight,  which  would  amount  to  about  £450.  No 
prudent  man  would,  in  such  a  state  of  things,  incur  the  expense  of 
repairing  the  ship ;  and  the  shipowners  electing  not  to  repair  were 
entitled  to  consider  the  charter  at  an  end,  and  the  chartered  freight 
as  totally  lost  by  a  peril  of  the  sea. 

Secondly  :  The  next  question  to  be  considered  is,  whether  the 
assured  can  recover  against  the  underwriters  without  a  notice  of 
abandonment.  The  counsel  for  the  appellants  argued  that  by  the 
law  of  marine  insurance  a  notice  of  abandonment  is  in  every  case 
required,  just  as  by  the  law  merchant  notice  of  dishonour  is  upon 
bills  of  exchange.  The  rule  as  to  abandonment  seems  to  be  that 
which  was  referred  to  by  Mr.  Justice  Blackburn,  as  contained 
in  Mr.  Phillips'  book  on  Insurance,  §  1491,  where  he  says : 
"  An  abandonment  being  a  transfer,  it  can  be  requisite  only  where 
there  is  some  assignable  transferable  subject  on  which  it  can 
operate.  When  nothing  remains  to  be  assigned  or  transferred  an 
abandonment  is  useless  and  unnecessary."  It  must  be  observed 
that  "  abandonment  "  and  "notice  of  abandonment  "  are  two  dis- 
tinct and  separate  things,  though  they  are  frequently  confounded 
together  in  expression. 

Where  a  notice  of  abandonment  is  given  it  is  conclusive  proof 
that  the  assured  intends  to  claim  from  the  underwriters  for  a 
total  loss ;  and  then  the  assured  must  (as  Lord  Cottenham  said 
in  Stewart  v.  Greenock  Marine  Insurance  Company,  2  H.  L.  C. 
183),  "  give  up  to  the  underwriters  all  the  remains  of  the  property 
recovered,  together  with  all  the  benefit  and  advantage  belonging 
or  incident  to  it;  or  rather"  (he  adds)  "such  property  vests  in 
the  underwriters." 

But  although  an  abandonment  or  cession  must  be  the  necessary 
result  of  every  claim  for  a  total  loss,  it  does  not  follow  that  notice 
of  this  abandonment  must  always  be  given  to  the  underwriters 
before  a  total  loss  can  be  claimed. 

It  was  argued  at  the  bar,  on  the  authority  of  the  case  of  Knight 
v.  Faith,  15  Q.  B.  649,  that  in  every  case  where  the  subject-matter 
insured  exists  in  specie,  though  in  a  damaged  state,  a  notice  of  aban- 
donment is  necessary  to  entitle  the  assured  to  make  a  claim  as  if  it 


SECT.  III.  —  WHERE    UNNECESSARY.  99 

No.  7.  —  Rankin  v.  Potter. 

had  been  actually  destroyed.  This  was  the  opinion  expressed  by 
Lord  Campbell  in  delivering  the  judgment  of  the  court  in  that 
case.  The  necessity  for  a  notice  of  abandonment  was  not  con- 
sidered upon  the  first  argument,  but  the  court  desired  to  hear  the 
case  farther  argued  on  the  question  whether,  under  the  circum- 
stances of  the  case,  the  plaintiffs  could  claim  for  a  total  loss  with- 
out giving  notice  of  abandonment.  It  seems  to  have  been  quite 
unnecessary  for  the  determination  of  the  case  to  introduce  this  ques- 
tion, because  the  circumstances  were  such  that  the  assured  could 
not  have  been  entitled  to  recover  for  a  total  loss  if  he  had  given 
the  most  timely  and  sufficient  notice  of  abandonment.  Lord  Camp- 
bell had  before,  in  the  case  of  Fleming  v.  Smith,  1  H.  L.  C.  535, 
stated  the  rule  as  to  notice  of  abandonment  in  the  same  unqualified 
terms,  saying  :  "  According  to  all  the  old  authorities,  a  constructive 
total  loss  can  only  entitle  the  owners  to  recover  as  for  an  actual 
total  loss,  by  a  notice  of  abandonment." 

It  had  been  previously  decided  by  the  Exchequer  Chamber,'  in 
the  case  of  Boux  v.  Salvador,  3  Bing.  jST.  C.  266,  that  notice  of 
abandonment  was  unnecessary  where  it  could  be  of  no  use  to  the 
underwriters,  who,  in  that  case,  if  they  had  received  notice  of  the 
loss,  could  have  exercised  no  control  over  the  goods  insured,  nor  by 
any  interference  have  altered  the  consequences.  The  case  was  an 
action  upon  a  policy  of  insurance  upon  hides  from  Valparaiso  to 
Bordeaux.  On  the  voyage  the  hides  were  found  to  be  in  a  state  of 
putridity,  occasioned  by  a  leak  in  the  ship,  and  they  were  sold  for  a 
fourth  of  their  value  at  Rio  Janeiro.  The  assured  received  the  news 
of  the  damage  to  the  hides  and  of  their  sale  at  the  same  time.  The 
Court  of  Common  Pleas,  1  Bing.  N.  C.  526,  gave  judgment  for  the 
defendant,  the  underwriter,  on  the  ground  that  the  assured  could 
not  recover  as  for  a  total  loss  without  a  notice  of  abandonment.  But 
this  judgment  was  reversed  in  the  Court  of  Exchequer  Chamber ; 
and  Lord  Abinger,  in  a  very  elaborate  and  carefully  considered 
judgment,  laid  down  the  principle  as  to  notice  of  abandonment 
when  an  assured  claims  for  a  total  loss  and  part  of  the  subject 
insured  remains  in  specie,  that  notice  is  only  necessary  to  be  given 
where  upon  receiving  it  the  underwriters  could  do  something  in 
the  exercise  of  their  rights  over  the  salvage.  In  that  case,  the 
assured  receiving  the  news  of  the  damage  to  the  hides  and  of 
the  sale  of  them  at  the  same  time,  a  notice  of  abandonment  to  the 
underwriters  would  have  been  idle  and  useless. 


100  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


In  Farnworth  v.  Hyde,  18  C.  B.  (n.  s.)  835,  under  similar  cir- 
cumstances of  the  loss  of  the  ship  insured  and  of  her  sale  having 
reached  the  assured  at  the  same  time,  it  was  held  that  the 
underwriters  were  liable  for  a  total  loss  without  notice  of  aban- 
donment. This  seems  to  place  the  rule  as  to  notice  of  aban- 
donment on  a  reasonable  foundation.  No  prejudice  can  possibly 
arise  to  the  underwriters  from  withholding  a  notice  where  it  is 
wholly  out  of  their  power  to  take  any  steps  to  improve  or  alter 
their  position. 

Upon  this  ground,  therefore,  I  am  of  opinion  that  there  was  no 
necessity  for  the  assured  in  this  case  to  give  notice  of  abandon- 
ment of  the  chartered  freight  to  the  underwriters.  Mr.  Justice 
Willes,  in  delivering  judgment  in  the  Court  of  Common  Pleas, 
apparently  adopting  the  rule  as  laid  down  in  Knight  v.  Faith,  15 
Q.  B.  649,  said  :  "  The  general  rule  of  insurance  law  applies,  that 
where  the  thing  exists  in  specie  (and  here  the  thing  insured,  viz., 
the  chance  of  earning  the  freight,  did  survive  the  risk)  and  can  be 
restored,  though  at  an  improvident  expense,  in  order  to  make  a  total 
loss  there  must  be  an  abandonment."  But  I  am  at  a  loss  to  under- 
stand what  chance  of  earning  the  freight  can  be  said  to  have 
existed  after  the  ship  Sir  William  Eyre,  mentioned  in  the  charter- 
party,  had  sustained  such  sea  damage  as  to  render  her  incapable  of 
performing  the  voyage  by  which  the  freight  was  to  be  earned,  and 
had  become  at  the  election  of  the  owners  a  total  loss.  The  under- 
writers could  not  have  substituted  any  other  ship,  and  tendered 
her  to  the  charterer  in  performance  of  the  charter-party  on  the 
owner's  part. 

It  was  suggested  in  argument  that  the  underwriters  on  freight, 
if  they  had  had  timely  notice  of  abandonment,  might  have  arranged 
with  the  underwriters  on  ship  to  repair  the  ship  at  their  joint 
expense,  and  have  sent  her  on  to  Calcutta,  and  tendered  her  to 
De  Mattos  in  fulfilment  of  the  owner's  contract.  But  this  is  the 
suggestion  of  a  mere  possibility,  and  contains  in  it  nothing  prac- 
tical, nor  can  it  reasonably  be  taken  into  account  in  judging  of 
the  rights  and  liabilities  of  the  parties.  I  have  no  difficulty  in 
coming  to  the  conclusion  that  there  was  no  necessity  for  any  notice 
of  abandonment  of  the  chartered  freight  to  the  underwriters  on 
freight. 

Thirdly  :  This  being  my  opinion,  it  seems  to  me  wholly  unneces- 
sary to  consider  whether  the  notice  of  abandonment  which  was 


SECT.  III. — WHERE   UNNECESSARY.  101 

No.  7.  —  Rankin  v.  Potter. 

given  was  given  in  time.  The  rule  is,  where  notice  of  abandon- 
ment is  necessary  it  must  be  given  in  a  reasonable  time  after 
information  of  the  damage  which  has  occurred  to  the  subject  of 
insurance.  Whether  sufficient  notice  was  given  depends  upon, the 
facts  of  each  particular  case,  and  the  decision  upon  one  case  can  be 
no  authority  or  guide  upon  any  other.  I  must  therefore  decline  to 
express  any  opinion  with  which  of  the  learned  Judges  I  should  be 
disposed  to  agree  upon  this  question. 

Fourthly :  There  only  remains  to  consider  the  question  whether 
the  conduct  of  the  owners  of  the  ship  after  the  damage  she  sustained 
was  such  as  to  discharge  the  underwriters  on  freight.  Upon  this 
I  have  already  incidentally  made  some  observations.  It  is  unne- 
cessary to  examine  in  detail  the  various  acts  by  which  it  was  con- 
tended that  the  owners  had  elected  to  retain  the  ship,  and  to  come 
upon  the  underwriters  merely  for  a  partial  loss.  I  think  that  they 
had  precluded  themselves  by  dealing  as  they  did  with  the  ship, 
and  also  by  delaying  so  long  their  claim  for  a  total  loss.  But  I  do 
not  see  how  the  conduct  of  the  shipowners,  however  it  may  affect 
their  rights  under  one  contract,  can  have  any  influence  on  their 
rights  and  the  liabilities  of  another  party  under  a  separate  and 
independent  contract.  If  the  sea  damage  which  the  ship  sustained 
in  New  Zealand  was  such  as  to  reduce  her  to  a  state  which  rendered 
her  utterly  incapable  of  performing  the  voyage  to  England  without 
an  expense  which  no  prudent  uninsured  owner  would  incur,  then 
the  freight  was  totally  lost  from  that  moment,  and  how  the  owners 
chose  to  deal  with  the  disabled  ship  afterwards  was  wholly  imma- 
terial. If  the  damage  to  the  ship  had  been  such  that  it  might 
have  been  repaired  at  a  reasonable  expense  and  put  into  a  con- 
dition to  earn  the  freight,  and  the  shipowners  had  declined  to  take 
this  course,  they  would  have  lost  the  freight  not  by  the  perils  of 
the  sea  but  by  their  election.  But  the  damage  being  such  as  to 
render  the  repair  of  the  ship  practically  impossible,  the  question 
between  the  assured  and  the  underwriters  on  freight  must  be 
regarded  as  if  there  were  no  policy  on  the  ship ;  and  then  it 
becomes  the  simple  consideration  whether  the  freight  was  not 
totally  lost  by  the  perils  of  the  sea,  by  what  must  be  regarded,  in 
relation  to  it,  as  the  total  destruction  of  the  ship  by  which  it  was 
to  be  earned. 

I  think  that  the  judgment  of  the  Court  of  Exchequer  Chamber 
ought  to  be  affirmed. 


102  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


Lord  Colonsay.  My  Lords,  this  case  appears  to  be  attended 
with  a  great  deal  of  nicety.  It  is  novel,  too,  in  its  circumstances.- 
Indeed,  the  policy  here  is  peculiar,  and  the  consequence  has  been 
that  there  has  been  a  great  deal  of  difference  of  opinion  among  the 
Judges,  and  a  great  expenditure  of  ability  and  of  ingenuity  in  dis- 
cussing the  question.  It  appears  to  me  that  a  good  deal  of  that  has 
been  expended  in  consequence  of  mixing  up  together  things  which 
are  substantially  separate.  I  think  there  are  two  questions,  or 
rather,  perhaps,  only  one,  viz.,  whether  the  freight  was  lost  by 
reason  of  the  perils  of  the  sea  insured  against ;  and  I  think  that 
that  question  must  be  considered  altogether  separate  from  the  ques- 
tion of  an  insurance  by  other  parties  upon  the  ship.  Now,  notwith- 
standing that  one  of  the  learned  Judges,  of  whose  assistance  we 
have  had  the  benefit,  and  for  whose  opinion  I  entertain  the  highest 
respect,  has  expressed  the  opinion  that  the  loss  was  not  caused  by 
the  perils  insured  against,  but  by  the  inability  of  De  Mattos  to 
furnish  a  cargo,  I  am  compelled  to  differ  from  him.  It  appears  to 
me  that,  upon  the  admission  contained  in  Article  24  of  the  case, 
we  are  to  hold  that  the.  condition  of  things  within  the  period  to 
which  the  insurance  applied  was  such  that  the  vessel  was  in  a 
condition  in  which  an  abandonment  might  have  been  made  as  for 
what  is  called  a  constructive  loss  ;  that  is  to  say,  that  she  was  not 
in  a  condition  to  be  worth  repairing.  If  that  be  so,  I  think  that 
the  liability  then  attached,  and  that  the  risk  having  been  incurred, 
and  the  peril  having  been  sustained,  and  the  vessel  having  been 
rendered  incapable  of  earning  the  freight  by  reason  of  that  damage 
done  at  sea  or  in  port  within  the  period  insured  against,  that  ter- 
minated the  question.  No  doubt  it  was  not  then  ascertained  what 
the  damage  was,  but  it  was  afterwards  ascertained  that  that  damage 
was  sustained  within  that  period,  and  that  must  be  treated  as  an 
admission  in  the  case. 

Now,  I  do  not  see  how  the  matter  of  De  Mattos  having  failed  in 
the  month  of  December,  and  having  been  unable  to  supply  a  cargo, 
iir  having  declined  to  supply  a  cargo,  is  a  matter  which  can  be  said 
to  be  the  cause  of  the  loss  of  the  freight.  Something  is  said  about 
proximate  and  remote  causes,  and  these  are  matters  which  are  very 
apt  to  lead  us  into  philosophical  mazes  ;  but  I  think  it  is  very  clear 
that  before  De  Mattos  failed,  the  ability  to  earn  the  freight  was 
gone  by  reason  of  the  perils  insured  against  having  happened,  and 
that  appears  to  me  to  be  sufficient.     De  Mattos  was  under  no  obli- 


SECT.  III.  —  WHERE    UNNECESSARY.  103 

No.  1.  —  Rankin  v.  Potter. 

gation,  it  is  said,  to  furnish  a  cargo,  because  of  the  delay  of  the 
owners  of  the  vessel  to  tender  the  vessel.  I  think  I>c  Mattos  was 
under  no  obligation  to  furnish  a  cargo,  unless  there  was  presented 
to  him  a  vessel  fit  and  sufficient  to  carry  that  cargo  to  Britain,  and 
that  was  the  failure  that  occurred.  There  was  no  vessel  fit  and 
sufficient  to  carry  the  cargo  to  Britain  presented  to  De  Mattos, 
and  that  was  a  state  of  matters  that  occurred  before  the  vessel 
arrived  at  Calcutta. 

The  only  other  question  is  the  question  as  to  the  notice  of 
abandonment.  I  think  that  throughout  this  matter  we  must  con- 
sider this  case  as  if  there  had  been  no  insurance  upon  the  ship.  If 
thme  had  been  no  insurance  upon  the  ship,  what  would  have  been 
the  object  of  the  notice  of  abandonment,  or  what  was  to  be  gained 
by  such  a  notice  being  given  ?  I  do  not  see,  after  what  has  occurred, 
what  the  underwriters  on  the  freight  could  have  done.  The  vessel 
was  not  fit  to  be  repaired.  They  could  not  have  compelled  the 
owners  to  repair  her  when  she  was  not  worth  it,  What  was  to 
be  gained,  then,  by  the  notice  of  abandonment  being  given?  It 
is  true  there  was  a  puzzle  raised  by  some  of  the  Judges  as  to 
who  would  have  been  the  party  entitled  to  the  freight,  and,  there- 
fore, the  party  who  would  have  been  entitled  to  the  insurance  upon 
the  freight,  if  the  vessel  had  been  timeously  abandoned,  and  had 
been  repaired,  and  freight  had  been  earned.  But,  my  Lords,  I  do 
not  think  that  there  is  really  any  puzzle  in  the  case  at  all.  At  all 
events,  it  is  clear  that  if  the  freight  had  been  earned,  there  would 
have  been  no  loss  of  the  freight,  and  a  different  condition  of  mat- 
ters would  have  arisen.  The  question  as  to  the  right  to  demand 
the  insurance  if  the  vessel  had  been  lost  is  a  different  question 
altogether.  The  only  party  who  had  a  right  to  demand  the  in- 
surance is  the  party  who  effected  it;  and  if  there  had  been  no 
insurance  upon  the  vessel,  that  right  would  equally  have  existed 
with  regard  to  the  freight.  I  therefore  think  there  is  really  no 
substantial  ground  for  this  question  as  to  the  notice  of  abandon- 
ment ;  and  until  there  is  more  decided  authority  adduced  upon 
the  subject,  I  am  not  prepared  to  receive  the  doctrine  that  notice 
of  abandonment  in  a  matter  of  this  kind  stands  upon  the  same 
mercantile  footing  as  notice  of  dishonour  of  bills  of  exchange 
The  reason  of  the  thing,  in  my  apprehension,  is  against  that  doc- 
trine. I  think  that  the  reason  of  the  thing  tells  us  that  where 
there  is  nothing  substantially  to  abandon  to  the  party  to  whom  the 


104  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


notice  of  abandonment  is  given,  and  he  could  gain  nothing  by  it, 
then  it  is  not  necessary  to  give  that  notice.  Therefore  I  think 
that  all  that  puzzle  which  has  arisen  from  the  circumstance  of 
there  being  an  insurance  upon  the  vessel  is  quite  out  of  the 
question  when  you  come  to  consider  purely  the  liability  of  the 
underwriters  upon  the  freight.  In  this  case  it  appears  that  there 
was  no  timeous  notice  of  abandonment,  or  no  notice  of  abandon- 
ment at  all,  according  to  a  judgment  elsewhere  ;  and  therefore  in 
that  view  also  the  question  would  not  arise.  But  I  think  the  real 
question  is,  whether  the  right  to  freight  was  lost  by  the  perils  of 
the  sea  during  the  period  embraced  in  the  policy  of  insurance.  I 
think  it  was,  and  I  think  the  liability  attached,  and  I  see  nothing 
afterwards  to  relieve  the  parties  from  that  liability. 

Lord  Hatherley.  My  Lords,  in  this  case,  which  is  slightly 
complicated  in  its  details,  we  are  extremely  obliged  to  the  learned 
Judges  who  have  assisted  us  by  giving  us  their  opinions,  and  we 
are  also  indebted  to  the  learned  counsel  at  the  bar  for  so  thoroughly 
sifting  it  that,  like  many  other  cases  which  appear  complicated 
and  difficult  on  the  first  blush  and  opening  of  the  matter,  those 
difficulties  are  cleared  away  and  the  whole  matter  reduced  to  very 
simple  principles  when  there  has  been  a  thorough  discussion  of 
the  subject. 

My  Lords,  the  case  is  really  now  brought  simply  to  this.  The 
owner  of  a  ship  under  a  certain  charter-party  arranges  that  his 
vessel,  being  about  to  proceed  to  New  Zealand,  shall,  after  her 
voyage  thither,  and  after  a  certain  delay  there,  proceed  to  Cal- 
cutta and  take  on  board  a  cargo  from  one  De  Mattos,  he  having,  in 
the  first  instance,  entered  into  that  undertaking  with  him.  When 
she  arrives  at  Calcutta  she  is  to  be  tendered  to  De  Mattos  for  the 
purpose  of  receiving  the  cargo  to  be  so  provided,  and  she  must 
then  be  in  a  condition  sufficiently  staunch,  tight,  and  strong  for  the 
purpose  of  her  voyage  from  Calcutta  to  England,  or  rather  Great 
Britain,  in  order  to  earn  the  freight  that  will  then  be  due  from  De 
Mattos  in  respect  of  her  so  having  conveyed  his  goods.  This 
being  the  entire  course  of  the  vessel's  proceeding,  the  owner  is 
minded  to  insure  himself  against  the  perils  of  the  sea,  in  two. 
respects,  first,  as  regards  the  vessel,  and  secondly,  as  regards  the 
freight  to  be  earned  between  Calcutta  and  England.  I  mention 
this  because  there  can  be  no  reasonable  doubt  (indeed  the  learned 
.1  udges  said  they  hardly  thought  it  right  to  consider  the  question 


SECT.  III.  —  WHERE   UNNECESSARY.  105 

No.  7.  —  Rankin  v.  Potter. 

as  it  was  not  raised)  that,  however  peculiar  the  form  of  this  policy 
may  be  (and  it  is  of  a  somewhat  unusual  form),  there  is  nothing  to 
prevent  any  person,  during  the  whole  course  of  the  voyage,  insuring 
against  the  perils  of  the  sea  during  any  part  of  that  voyage,  whether 
the  perils  of  the  sea  may  occur  during  that  part  of  the  voyage  as 
to  which  the  ship  is  insured,  or  whether  the  chance  of  loss  against 
which  insurance  is  effected  may  he  the  chance  of  her  being  so  dam- 
aged in  the  anterior  part  of  the  voyage  as  not  to  be  able  to  fulfil  the 
subsequent  part  of  her  voyage  (in  respect  of  which  part  of  the  voyage 
itself  she  is  not  insured),  and  in  consequence  of  being  unable  to  fulfil 
the  subsequent  part  of  the  voyage  she  cannot  earn  the  freight  which 
is  insured. 

I  think  one  of  the  learned  Judges,  who  has  given  a  very  valuable 
and  able  judgment  in  this  case,  though  1  do  not  agree  with  him, 
Mr.  Baron  Martin,  seems  to  have  thrown  out  some  slight  doubt  as 
to  whether  or  not  the  mode  of  effecting  this  policy  was  one  that 
could  be  sustained.  But  he  dwelt  but  lightly  upon  that  point, 
and  I  need  say  no  more  upon  it,  because  no  authority  was  cited  for 
saving  that  the  insurance  which  was  effected  was  in  any  way  con- 
trary to  the  law  of  insurance.  The  insurance  effected  was  simply 
this  :  the  vessel  was  to  proceed  to  New  Zealand.  During  the  whole 
period  of  her  voyage  thither,  and  of  her  stay  there  for  thirty  days, 
she  is  not,  says  the  policy,  to  be  injured  or  damaged  by  perils  of 
the  sea  to  such  an  extent  as  to  prevent  her  being  staunch,  tight, 
and  strong  enough  on  her  arrival  at  Calcutta  to  take  the  expected 
cargo  to  England.  That  is  the  undertaking  which  is  given  by  the 
policy,  and  that  is  the  risk  which  is  insured  against.  It  is  clear 
and  plain,  from  the  admissions  in  this  case  and  the  evidence  that 
has  been  given,  that  she  was  injured  during  the  period  insured 
against,  that  is  to  say,  she  was  injured  just  about  the  time  of  her 
arrival  at  New  Zealand,  and  while  she  was  in  the  neighbourhood  of 
Bluff  Harbour.  She  was  injured  to  such  an  extent  that,  although 
at  Bluff  Harbour  it  could  not  be  ascertained  what  the  extent  of  the 
injury  was,  and  although  at  Dunedin  a  certain  amount  of  repair  was 
effected  which  enabled  the  vessel  to  proceed  to  Calcutta,  she  was  not 
staunch,  tight,  and  strong  enough  for  the  voyage  to  England  when 
she  arrived  at  Calcutta,  and  her  being  in  that  condition  was  wholly 
due  to  the  injuries  she  had  sustained  during  the  insured  period. 

It  is  farther  admitted  in  the  case  that  the  injury  was  of  such  a 
character  that  no  prudent  owner  would  have  repaired  her  for  the 


106  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


benefit  of  the  contract  which  had  been  entered  into  as  to  freight, 
because,  in  order  to  make  those  repairs,  it  would  have  been  neces- 
sary to  expend  more  than  the  whole  value  of  the  ship ;  in  other 
words,  when  it  was  ascertained  what  the  extent  of  the  injury  was, 
it  was  found  that  she  was  in  such  a  condition  that,  had  the  owners 
been  minded  to  abandon  her  at  the  time  when  the  injuries  were 
sustained  to  those  who  had  taken  the  policy  on  the  ship  (and  who 
must  be  distinguished  from  those  who  had  taken  the  policy  on  the 
freight  which  is  now  before  us),  they  would  have  been  justified  in 
so  doing.  As  between  the  owners  and  those  who  insured  the  ship 
itself  there  might  arise  a  question,  and  indeed  there  did  arise  a  ques- 
tion, which  was  determined,  I  think,  in  the  action  against  Camp- 
bell, as  to  whether  or  not  they  had  given  timely  notice  of  the 
abandonment  of  the  vessel  to  those  who  had  insured  her,  or 
whether  by  their  conduct  in  delaying  her  voyage  to  Calcutta  for  a 
very  considerable  time,  by  their  employing  the  ship  in  the  mean 
time  to  a  certain  extent  as  a  storehouse  for  coals,  and  by  taking- 
other  steps  which  occasioned  great  and  possibly  unnecessary  delay 
in  New  Zealand  before  giving  notice  of  abandonment,  they  had  put 
themselves  in  such  a  position,  as  respected  those  who  had  insured 
the  vessel,  as  to  have  lost  their  right  of  abandonment.  But  that 
matter  appears  to  me,  I  confess,  as  it  seems  to  have  done  to  your 
Lordships  who  have  preceded  me,  to  be  wholly  immaterial  as 
regards  the  question  before  us  in  respect  of  the  insurance  on  the 
freight.  When  the  vessel  came  to  Calcutta  it  appears  that  there  was 
(and  this  was  somewhat  relied  upon),  in  the  first  instance,  an  actual 
tender  of  the  vessel  to  De  Mattos,  but  it  was  found  that  De  Mattos 
had  become  insolvent,  and  those  who  represented  him,  the  assignees 
of  De  Mattos,  declined  to  furnish  any  cargo.  All  this  took  place 
before  there  had  been  a  thorough  examination  of  the  amount  of 
the  injury  in  Calcutta.  When  a  thorough  examination  took  place 
afterwards  the  result  was  what  I  have  described,  that  no  prudent 
owner  would  have  thought  of  putting  her  into  a  condition  to 
continue  her  voyage'  to  Great  Britain. 

That  being  so,  it  appears  that  every  element  of  the  contract 
with  the  underwriters  upon  the  freight  is  brought  out  in  a  clear 
and  distinct  light,  showing  that  the  liability  of  the  underwriters  on 
the  freight  had  actually  accrued,  unless  indeed  the  question  that 
has  been  raised  with  respect  to  the  notice  of  abandonment  as 
applying  to  the  insurance  of  the  freight  should  prevail  with  your 


SECT.  III. — WHERE    UNNECESSARY.  111? 

No.  7.  —  Rankin  v.  Potter. 

Lordships.  The  ship  had  undoubtedly  been  insured  during  the 
period  when  the  injury  was  sustained.  The  ship  undoubtedly,  in 
consequence  of  that  injury,  was  unable  to  perform  the  voyage,  and 
could  not  therefore  be  tendered  in  the  condition  in  which  she 
ought  to  have  been  tendered  to  De  Mattos,  and  therefore  the 
freight  was  lost  in  consequence  of  that  injury.  I  will  postpone 
for  the  moment  the  consideration  of  the  question  of  De  Mattos" 
insolvency. 

Putting  the  question  aside  as  to  how  far  De  Mattos'  insolvency 
may  be  regarded  as  the  proximate  cause  of  the  loss  of  freight 
rather  than  the  damage  sustained  by  the  ship  in  the  anterior  part 
of  the  voyage,  there  -comes  the  question,  Was  it  or  was  it  not 
necessary  to  give  a  notice  of  abandonment  in  this  case,  and  if 
necessary,  was  it  given  in  time  ? 

As  regards  the  necessity  for  giving  notice  of  abandonment,  I 
think  that  is  the  point  that  was  most  vigorously  pressed  upon  us 
by  the  counsel  for  the  appellant,  who  relied  upon  some  dicta  of 
Lord  Campbell  upon  the  subject,  and  contended  strongly  that  it 
was"  necessary  in  all  cases  whatsoever  of  a  claim  upon  under- 
writers as  for  a  total  loss  upon  a  policy,  for  the  owners  to  give 
notice  to  the  underwriters  of  abandonment  of  the  thing  insured, 
whatever  might  be  the  circumstances  or  the  position  of  the  insurers 
or  the  insured,  and  whether  in  truth  any  advantage  could  possibly 
be  made  of  that  notice  of  abandonment  or  not.  It  was  put  upon 
this  ground,  that  it  was  rather  for  the  underwriters  to  say  in  their 
judgment  what  advantage  they  might  be  able  to  derive  from  that 
notice  of  abandonment  so  given  in  regard  to  their  position  on  their 
policy.  I  apprehend,  my  Lords,  that  certainly  no  authority  has 
been  cited  to  show  that  this  notice  of  abandonment  is  to  be  con- 
sidered necessary  in  a  case  where  no  such  advantage  could  possibly 
accrue  to  the  underwriters.  If  the  vessel  be  not  really  wholly 
lost,  if  it  be  only  a  constructive  total  loss,  as  it  is  termed  (though 
that  is  perhaps  not  a  very  happy  phrase),  occasioned  by  the  im- 
possibility of  effecting  repairs,  the  cost  of  which  will  not  exceed 
the  whole  value  of  the  ship  when  repaired,  then  there  being 
something  in  esse  to  be  handed  over  to  the  underwriters,  it  is 
necessary  that  they  should  be  informed  of  this  in  order  that  they 
may  have  an  opportunity  of  making  the  best  use  they  can  of 
what  remains,  —  of  that  which  the  owners  give  up,  in  electing  to 
make  that  a  total  loss  which  is  not  in  fact  a  total  loss,  —  there 


108  ABANDONMENT. 


No.  7.  —  Rankin  v.  Potter. 


being  something  in  the  nature  of  salvage,  or  fragments,  or  wreck,  or 
something  of  that  kind,  which  may  be  of  value  to  the  under- 
writers, although  not  of  any  to  the  owners.  But  in  this  case  there 
is  nothing  suggested,  and  nothing  can  be  suggested  (except  one 
single  point  which  I  will  notice  in  a  moment),  as  to  any  advantage 
that  could  have  been  derived  by  the  underwriters  from  any  such 
notice  of  a  constructive  total  loss  being  given  to  them  on  the  part 
of  those  who  had  insured. 

The  only  exception  is,  that  it  is  suggested  that  they  might  have 
said,  "  True  it  is,  we  insured  that  this  freight  should  be  earned, 
and  certainly  that  earning  depended  upon  the  arrival  of  the  ship 
at  Calcutta  in  a  condition  to  earn  it.  She  did  not  arrive  at 
Calcutta  in  a  condition  to  earn  it,  —  it  would  have  been  folly  to 
expend  money  in  repairing  the  ship,  which  would  have  exceeded 
the  value  of  the  ship  when  repaired ;  but  if  you  had  told  us  that 
you  were  about  to  claim  as  for  a  total  loss  in  respect  of  this  freight, 
we  should  have  been  in  this  position :  we  should  have  found  that 
you  had  insured  the  vessel  ;  the  underwriters  on  the  vessel  would 
have  been  in  an  equally  disadvantageous  plight  with  ourseives, 
having  a  heavy  demand  upon  them  in  respect  of  their  insurance, 
and  we  two  together  might  have  been  minded  to  make  such  an 
arrangement  each  with  the  other  that,  regard  being  had  to  what  we 
each  should  have  to  pay  upon  our  insurances,  it  might  have  been 
worth  our  while  to  put  the  vessel  into  a  state  to  earn  the  freight." 
Those  who  had  insured  the  freight  could  not  tender  any  other 
vessel.  That  question  does  not  arise  in  the  peculiar  insurance  we 
have  before  us,  because  it  was  an  insurance  of  freight  to  be  earned 
by  the  Sir  William  Eyre  and  by  no  other  vessel.  De  Mattos  of 
course  might  have  refused  any  other  vessel  than  that ;  it  could 
not  be  earned  therefore  by  tendering  any  other  vessel.  It  is  sup- 
posed that  if  the  underwriters  on  the  freight  had  had  timely 
notice,  they  might  have  made  such  an  arrangement  with  the  under- 
writers on  the  hull  or  the  vessel  herself  as  would  have  saved  a  total 
loss  accruing. 

I  apprehend,  my  Lords,  that  that  is  much  too  remote  a  con- 
tingency to  render  it  necessary  for  the  insured  to  give  the  insurers 
notice  of  abandonment  upon  the  principle  which  I  have  before 
referred  to,  viz.,  of  their  being  able  to  save  something  out  of 
the  wreck.  It  is  not  necessary  to  illustrate  that,  but  it  might  be 
shown  in  a  variety  of  ways  how  such  a  doctrine  as  that  would  carry 


SECT.  III. WHERE    UNNECESSARY.  109 

No.  7.  —  Rankin  v.  Potter. 

the  necessity  of  notice  to  the  remotest  extent  in  respect  of  bargains 
which  might  be  made  by  persons  who  might  or  might  not  be 
interested  at  the  moment  in  the  ship,  such  as  persons  who  .might 
purchase  the  damaged  vessel,  or  the  wreck,  or  the  like.  Numerous 
arrangements  might  be  made  of  that  kind,  which  would  create,  I 
apprehend,  far  too  remote  an  interest  to  be  considered  upon  a 
question  as  to  the  law  requiring  notice  of  abandonment  to  lie 
given.  The  whole  principle  of  the  notice  of  abandonment  is,  that 
you  are  to  place  the  underwriters  in  such  a  position  that  they  shall 
have  all  the  advantages  which  you  now  possess  in  respect  of  the 
vessel,  supposing  that  they  can  make  those  advantages  available 
for  the  purpose  of  effectuating  a  salvage  of  some  portion  of  that 
which  has  been  lost  in  consequence  of  the  perils  which  they  have 
insured  you  against. 

Now,  my  Lords,  with  regard  to  the  observations  made  by  Mr. 
Baron  Martin,  that  the  loss  really  was  not  a  loss  by  perils  of  the 
sea,  but  was  due  to  the  insolvency  of  De  Mattos,  I  think  there  is  a 
clear  fallacy  in  that  view  in  two  points,  the  first  of  which  has  been 
noticed  by  my  noble  and  learned  friend  who  first  stated  his  views 
upon  this  appeal ;  it  is,  that  the  loss  had  accrued  before  the  insol- 
vency of  De  Mattos  occurred.  The  loss  accrued  when  the  accident 
happened  in  which  the  damage  occurred  at  Bluff  Harbour,  and 
that  was  some  time  before  the  insolvency  of  De  Mattos  took  place. 
But  I  do  not  think  it  necessary  to  rest  it  upon  that.  I  apprehend 
that  it  is  not  a  thing  which  would  absolve  the  underwriters  from 
the  liability  for  the  loss  which  undoubtedly  accrued  on  account  of 
the  ship  not  being  fit  for  the  voyage.  There  is  nothing  to  absolve 
them  from  the  liability  to  pay  the  insurance  in  the  circumstance 
of  the  insolvency  of  De  Mattos,  who  in  the  chapter  of  accidents 
might  have  become  solvent,  and  even  wealthy  again,  before  the 
necessity  arose  for  the  vessel  completing  her  voyage.  But  the 
point  that  has  to  be  looked  at  is  this :  Were  the  owners  in  a  posi- 
tion to  enforce  their  rights  against  De  Mattos,  whatever  they  may 
have  been ;  were  they  in  a  position,  by  tendering  the  vessel  to  him, 
either  to  insist  upon  his  paying  the  freight  then  and  there,  or  to 
insist  upon  such  rights  as  might  accrue  to  them  by  action  in  respect 
of  his  non-performance  of  the  contract ;  or  were  they  disabled  from 
occupying  that  position  by  the  consequences  resulting  from  the 
perils  of  the  sea  which  arose  at  Bluff  Harbour,  preventing  them 
from  fulfilling  their  part  of  the  contract  with  De  Mattos  by  ten- 


110  ABANDONMENT. 


No.  7.  —  Kankin  v.   Potter.  —  Notes. 


dering  to  him  a  ship,  staunch,  tight,  and  strong,  for  carrying  his 
goods  to  Britain  ?  If  that  be  the  case,  of  course  it  is  clearly  and 
distinctly  within  the  terms  of  the  policy  ;  and  that  being  so,  it 
seems  to  me  clear  that  the  underwriters  must  be  liable  unless  this 
one  point,  which  was  strongly  insisted  upon,  of  want  of  timely 
notice  of  abandonment,  precludes  their  liability.  I  think  your 
Lordships  are  all  agreed  that  no  such  notice  was  necessary,  and 
therefore  it  is  unnecessary  to  consider  the  question  as  to  the  time 
at  which  such  notice  was  given. 

Therefore,  my  Lords,  upon  all  the  points,  I  think  that  the  appel- 
lants have  failed,  and  consequently  the  appeal  should  be  dismissed 
with  costs. 

Judgment  of  tlic  Court  of  Exchequer  Chamber  affirmed; 
and  appeal  dismissed  with  costs. 

ENGLISH   NOTES. 

Insurance  on  freight  under  charter-party  under  which  the  freight  was 
to  be  paid  at  Madeira,  on  delivery  of  certain  goods  there,  by  Madeira 
wine  to  be  carried  by  the  ship  to  Jamaica  free  of  freight.  The  ship 
arrived  at  Madeira,  where  she  delivered  the  goods;  but  was  wrecked 
before  the  wine  in  payment  of  the  freight  could  be  shipped  on  board. 
Held,  a  total  loss  of  the  freight.  Atty  v.  Lindo  (C.  P.  1805),  1  Bos. 
&  P.  K  R,  236. 

Policy  on  freight  (without  mention  of  charter-party)  at  and  from  Riga 
to  any  port  in  the  United  Kingdom.  The  ship  had  sailed  under  a 
charter-party,  under  which  she  was  to  bring  home  a  cargo  of  hernp  from 
Riga.  The  ship  was  detained  at  Riga  by  order  of  the  Russian  Govern- 
ment so  long  that  she  could  not  sail  on  account  of  the  frost.  She  never 
loaded  under  the  charter-party,  but  in  the  spring  entered  into  a  new 
contract  under  which  she  earned  freight  on  the  voyage  home,  but  the 
expenses  of  the  delay  had  exceeded  the  freight.  Held,  that  the  freight 
so  earned  was  the  insured  freight,  and  that  there  was  no  total  loss. 
Everth  v.  Smith  (K.  P.  1814),  2  M.  &  8.  278. 

Insurance  on  freight  for  a  voyage  becomes,  when  the  ship  is  laden, 
an  insurance  of  the  freight  for  the  particular  cargo  shipped.  If,  in 
consequence  of  a  peril  insured  against,  it  becomes  impossible  to  bring 
home  that  cargo,  there  is  a  total  loss  of  the  freight,  and  abandonment 
is  unnecessary,  as  there  is  nothing  to  abandon.  If  the  ship  earns  freight 
by  bringing  home  another  cargo,  that  is  salvage  on  freight.  Green  v. 
Royal  Ex.  Ass.  Co.  (K.  P.  1815),  0  Taunt.  08. 

Insurance  of  freight  valued.     The  ship  having  sprung  a  leak  was  run 


SECT.  III.  —  WHERE   UNNECESSARY.  Ill 

No.  7.  —  Rankin  v.  Potter.  —  Notes. 

ashore,  taking  the  ground  on  a  reef  of  rocks.  While  there  in  a  state  of 
imminent  peril,  she  was  sold  by  the  captain  (as  master)  under  the  ad- 
vice of  a  surveyor  and  agent  for  the  owners.  The  jury  found  that  the 
master  had  acted  throughout  fairly  and  bond  fide  for  the  benefit  of  all 
concerned.  Held  (on  a  case  agreed  to  he  turned  into  a  special  verdict), 
that  the  assured  might  recover  as  for  a  total  loss  although  no  notice  had 
been  given  of  abandonment,  and  although  the  purchaser  got  the  ship  off 
and  ultimately  brought  her  into  port.  Idle  v.  Royal  Ex.  Ass.  Co.  (Ex. 
1819),  8  Taunt.  755.  —  It  appears  from  a  note  to  Read  v.  Bonham,  '•> 
Brod.  &  Bing.  151,  that  on  the  case  coming  on  for  argument  in  K.  B. 
in  error,  the  court  expressed  the  opinion  that  the  necessity  did  not  ap- 
pear from  the  special  verdict,  and  a  centre  de  novo  was  awarded  for  the 
purpose  of  trying  whether  it  existed.  Bayley,  J.,  said  that  the  question 
whether  the  circumstances  amounted  to  an  abandonment  might  also  be 
left  open.  The  case  is  however  cited  in  Roux  v.  Salvador  (p.  62, 
supra)  in  a  passage  again  quoted  in  Cossman  v.  West,  13  App.  Cas. 
17G,  as  an  authority  for  the  projDosition  that  no  abandonment  is  neces- 
sary where  there  is  a  total  loss  of  the  subject-matter  insured. 

A  case  similar  to  Idle  v.  Royal  Exchange  Ass.  Co.  came  into  the 
Common  Pleas  in  1827.  The  court,  including  Park,  J.,  approved  the 
decision  of  the  former  case  by  the  Court  of  Exchequer,  and  gave  a  simi- 
lar judgment.  They  also  put  the  case  on  the  ground  that,  the  insurance 
being  on  freight,  there  was  nothing  to  abandon.  Mount  v.  Harrison 
(C.  P.    1827),  4  Bing.  388. 

Shipowner  and  charterer  may  agree  by  charter-party  that  a  portion 
<»f  the  stipulated  freight  shall  be  prepaid:  in  which  case  the  remainder 
of  the  freight  may  be  insured,  and  if  the  freight  ultimately  earned 
does  not  exceed  what  has  been  prepaid,  so  that  no  balance  becomes  pay- 
able on  the  performance  of  the  voyage,  the  shipowner  may  recover  as 
on  a  total  loss.  Allison  v.  Bristol  Marine  Ins.  Co.  (1876),  1  App. 
Cas.  209. 

In  a  policy  on  chartered  freight,  where  the  ship  on  the  way  to  take  up 
the  cargo  has  grounded,  and  is  delayed  so  long  that  the  charterers  justi- 
fiably throw  up  the  charter  and  send  the  cargo  by  another  ship,  this  is 
a  total  loss  of  the  chartered  freight  by  perils  of  the  sea.  Jackson 
v.  Union  Marine  Ins.  Co.  (1873,  1879),'  L.  R.,  8  C.  P.  592;  42  L.  J. 
C.  P.  284  ;  10  C.  P.  125  ;  44  L.  J.  C.  P.  27. 

AMERICAN   NOTES. 

Where  a  vessel  is  so  injured  by  a  sea  peril  as  not  to  be  reparable,  except 
at  an  expense  exceeding  its  value  when  repaired,  there  is  an  actual  total  loss, 
and  no  abandonment  is  necessary.  Bullard  v.  Roger  William*  Ins.  Co.,  1 
Curtis  Circ.  Ct.  (U.  S.)  148. 


112  ABANDONMENT. 


No.  8.  —  Hamilton  v.  Mendez.  —  Kule. 


Abandonment  is  unnecessary  where  it  cannot  possibly  be  of  benefit  to 
the  underwriter.  Fosdick  v.  Norwich  Ins.  Co.,  3  Day  (Conn.),  108 ;  Walker 
v.  Protection  Ins.  Co.,  29  Maine,  317.  And  where  something  still  exists 
capable  of  abandonment.  Burt  v.  Brewers',  fyc.  Ins.  Co.,  16  N.  Y.  Sup. 
Ct.  383. 


Section  IV.  —  Criterion  of  Time  in  cases  of  Abandonment 

and   Total  Loss. 

No.  8.  — HAMILTON  v.   MENDEZ. 

(K.  B.  1761.) 

No.  9.  —  BAINBRIDGE   v.   NEILSON. 

(k.  b.  1808.) 

RULE. 

Abandonment  is  not  effectual  to  entitle  the  assured  to 
recover  as  for  a  total  loss,  unless  the  facts  constituting 
a  total  loss  exist  at  the  time  of  the  abandonment. 

Semble,  that  they  must  exist  also  at  the  time  of  action 
brought. 

Hamilton  v.  Mendez. 

2   Burr.   1198. 

Monday,  8th  June,  1761.  This  was  a  special  case  reserved  at 
( ruildhall,  at  the  sittings  there  before  Lord  Mansfield  after  Michael- 
mas Term,  1760,  in  an  action  brought  against  the  defendant  as  one 
of  the  insurers,  upon  a  policy  of  insurance  from  Virginia  or  Mary- 
land to  London,  of  a  ship  called  the  Selby  and  of  goods  and  mer- 
chandise therein,  until  she  shall  have  moored  at  anchor  twenty-four 
hours  in  good  safety. 

The  case  stated  for  the  opinion  of  the  court  was  as  follows :  — 

That  the  ship  Selby,  mentioned  in  the  policy,  being  valued  at 
£1200,  and  the  plaintiff  having  interest  therein,  caused  the  policy 
in  question  to  be  made  ;  and  the  same  was  accordingly  made,  in 
the  name  of  John  Mackintosh,  on  behalf  and  for  the  use  and  benefit 
of  the  plaintiff,  and  which  was  subscribed  by  the  defendant,  as 
stated,  for  the  sum  of  £100. 

That  the  ship,  being  of  the  burthen  of  two  hundred  tons,  was 
on  the  28th  of  March,  1760,  in  good  safety  at  Virginia ;    where 


SECT.  IV.  —  CRITERION    OF   TIME.  113 

No.  8.  —  Hamilton  v.  Mendez. 

she  took  on  board  192  hogsheads  of  tobacco,  to  be  delivered  at 
London. 

That  on  the  said  28th  day  of  March,  she  departed  and  set  sail 
from  Virginia  for  London ;  and  on  the  6th  day  of  May  following, 
as  she  was  sailing  and  proceeding  in  her  said  voyage,  was  taken  by 
a  French  privateer  called  the  Aurora,  of  Bayonne,  Captain  Jean  Piena 
Lesea  commander ;  who,  with  his  company  were  subjects  of  the 
French  king,  then  being  at  war  with  our  lord  King  George  the 
Second. 

That  at  the  time  of  the  capture,  the  Selby  had  nine  men  on 
board  ;  and  the  captain  of  the  said  privateer  took  out  six,  besides 
the  captain,  Dorsdill ;  leaving  only  the  mate  and  one  man  on 
board. 

That  the  French  put  a  prize-master  and  several  men  on  board 
the  said  ship  Selby,  to  carry  her  to  France. 

That  as  the  French  were  carrying  the  said  ship  Selby  towards 
France,  on  the  23d  day  of  the  said  May-,  she  was  retaken  off 
Bayonne,  by  the  Southampton,  an  English  man-of-war  commanded 
by  Captain  Antrobus ;  who  sent  her  into  Plymouth,  where  she 
arrived  the  6th  day  of  June  following. 

That  the  plaintiff  living  at  Hull,  as  soon  as  he  was  informed 
what  had  befallen  his  said  ship  the  Selby,  wrote  a  letter  on  the 
23d  day  of  June,  to  his  agent  John  Mackintosh  living  in  London, 
to  acquaint  the  defendant,  "  that  the  plaintiff  did  from  thenceforth 
abandon  to  him  his  interest  in  the  said  ship,  as  to  the  said  one 
hundred  pounds  by  the  defendant  insured." 

That  the  said  John  Mackintosh,  on  the  26th  day  of  the  said  June, 
acquainted  the  defendant  with  an  offer  to  abandon  the  ship:  to 
which  the  defendant  said  "  he  did  not  think  himself  bound  to  take 
to  the  ship;  but  was  ready  to  pay  the  salvage  and  all  other  losses 
and  charges  that  the  plaintiff  sustained  by  the  capture." 

That  upon  the  19th  day  of  August,  the  said  ship  Selby  was 
brought  into  the  port  of  London,  by  the  order  of  the  owners  of  the 
cargo  and  the  re-captors. 

That  the  said  ship  Selby  sustained  no  damage  from  the  capture. 

That  the  whole  cargo  of  the  said  ship  Selby  was  delivered  to  the 
freighters,  at  the  port  of  London  ;  who  paid  the  freight  to  Benjamin 
Vaughan,  without  prejudice. 

The  question  therefore  submitted  to  the  opinion  of  the  court  in 
fiis   case,  is,    "Whether   the   plaintiff,  on  the  said  26th  day  of 
vol.  i.  —  8 


114  ABANDONMENT. 


No  8.  —  Hamilton  v.  Mendez. 


June,  had  a  right  to  abandon,  and  hath  a  right  to  recover  as  for  a 
total  loss."  If  lie  is  entitled  to  recover  for  a  total  loss  ;  then  the 
jury  find  a  verdict  for  the  plaintiff;  damages  £98,  costs  40s.  But  if 
the  court  shall  be  of  opinion,  that  he  had  no  right  to  abandon  on 
the  said  26th  day  of  June,  o*r  he  ousdit  onlv  to  recover  an  average 
loss,  then  the  jury  find  a  verdict  for  the  plaintiff;  damages  £10, 
costs  40s. 

The  case  having  been  argued  by  Mr.  Morton  for  the  plaintiff, 
and  Mr.  Aston  for  the  defendant,  and  the  court  having  taken  time 
to  consider,  — 

Lord  Mansfikld  now  delivered  the  resolution  of  the  court ; 
having  first  stated  the  case,  as  settled  at  nisi  prius. 

The  plaintiff  has  averred  in  his  declaration,  as  the  basis  of  his 
demand  for  a  total  loss,  "  that  by  the  capture  the  ship  became  wholly 
lost  to  him." 

The  general  question  is,  whether  the  plaintiff,  who  at  the  time  of 
his  action  brought,  at  the  time  of  his  offer  to  abandon,  and  at  the 
time  he  was  first  apprised  of  any  accident  having  happened,  had 
only,  in  truth,  sustained  an  average-loss,  ought  to  recover  for  a 
total  one. 

In  support  of  the  affirmative,  the  counsel  for  the  plaintiff  insisted 
upon  the  four  following  points  :  — 

1st.  That  by  this  capture,  the  property  was  changed,  and  there- 
fore the  loss  total  for  ever. 

I'd.  If  the  property  was  not  changed,  yet  the  capture  was  a 
total  loss. 

3d.  That  when  the  ship  was  brought  into  Plymouth,  particularly 
on  the  26th  of  June,  the  recovery  was  not  such  as,  in  truth,  changed 
the  totality  of  the  loss  into  an  average. 

4th.  Supposing  it  did,  yet,  the  loss  having  once  been  total,  a 
right  vested  in  the  insured  to  recover  the  whole  upon  abandoning, 
which  right  could  never  afterwards  be  devested  or  taken  from  him 
by  any  subsequent  event. 

As  to  the  first  point, — If  the  change  of  property  was  at  all  mate- 
rial as  between  the  insurer  and  insured,  it  would  not  be  applicable 
to  the  present  case  ;  because,  by  the  marine  law  received  and  prac- 
tised in  England,  there  is  no  change  of  property,  in  case  of  a  capture 
before  condemnation  :  and  now,  by  the  act  of  Parliament,  in  case  of 
a  re-capture,  the  jus  postliminii  continues  forever. 

I  know  many  writers  argue,  between  the  insurer  and  insured, 


SECT.  IV.  —  CRITERION    01-    TIME.  IK") 


No.  8.  —  Hamilton  v.  Mendoz. 


from  the  distinction  "  whether  the  property  was  or  was  not  changed 

by  the  capture,  so  as  to  transfer  a  complete  right  from  the  enemy 
to  a  recaptor  or  neutral  vendee,  against  the  former  owner."  But  arbi- 
trary notions  concerning  the  change  of  property  by  a  capture,  as 
between  the  former  owner  and  a  recaptor  or  vendee,  ought  never  to 
be  the  rule  of  decision,  as  between  the  insurer  and  insured  upon  a 
•contract  of  indemnity,  contrary  to  the  real  truth  of  the  fact.  And 
therefore  I  agree  with  the  counsel  for  the  plaintiff,  upon  their  se- 
cond point,  "  that  by  this  capture,  while  it  continued,  the  ship  was 
totally  lost,"  though  it  be  admitted  "  that  the  property,  in  case  of  a 
recapture,  never  was  changed,  but  returned  to  the  former  owner." 

The  third  point  depends,  as  every  question  of  this  kind  must, 
upon  the  particular  circumstances.  It  does  not  necessarily  follow, 
that,  because  there  is  a  recapture,  therefore  the  loss  ceases  to  be 
total.  If  the  voyage  is  absolutely  lost,  or  not  worth  pursuing  ;  if 
the  salvage  is  very  high  ;  if  further  expense  is  necessary  ;  if  the  in- 
surer will  not  engage,  in  all  events,  to  bear  that  expense,  though 
it  should  exceed  the  value  or  fail  of  success  :  under  these  and  many 
other  like  circumstances,  the  insured  may  disentangle  himself  and 
abandon,  notwithstanding  there  has  been  a  recapture. 

The  Guidon,  among  other  descriptions  of  a  total  loss  where  the 
insured  may  abandon,  instances,  "if  the  damage  exceeds  half  the 
value  of  the  thing ;  or  if  the  voyage  be  lost,  or  so  disturbed,  that 
the  pursuit  of  it  is  not  worth  the  freight."  But  in  the  present  case, 
the  voyage  was  so  far  from  being  lost,  that  it  had  only  met  with  a 
short  temporary  obstruction  ;  the  ship  and  cargo  were  both  entirely 
safe  ;  the  expense  incurred  did  not  amount  to  near  half  the  value  ; 
and  upon  the  26th  of  June,  when  the  ship  was  at  Plymouth,  and 
the  offer  made  to  abandon,  the  insurer  undertook  to  pay  all  charges 
and  expenses  the  plaintiff  should  be  put  to  by  the  capture. 

The  only  argument  to  show  that  the  loss  had  not  then  ceased  to 
be  total,  was  built  upon  a  mistaken  supposition,  "  that  the  recaptor 
had  a  right  to  demand  a  sale,  and  to  put  a  stop  to  any  further  prose- 
cution of  the  voyage."  But  that  is  not  so.  The  property  returned 
•to  the  plaintiff,  pledged  to  the  recaptors  for  one-eighth  of  the  value, 
as  salvage  for  retaking  and  bringing  the  ship  into  an  English  port. 
Upon  paying  this,  the  owner  was  entitled  to  restitution  ;  the  recapt<  >r 
had  no  right  to  sell  the  ship.  If  they  differed  about  the  value,  the 
Uourt  of  Admiralty  would  have  ordered  a  commission  of  appraise- 
ment.    In  this  case,  it  was  the  interest  of  the  owner  of  the  ship, 


116  ABANDONMENT. 

No.  8.  —  Hamilton  v.  Mendez. 

the  owners  of  the  cargo,  and  the  recaptor,  that  she  should  forth- 
with proceed  upon  her  voyage  from  Plymouth  to  London.  But. 
had  the  recaptor  opposed  it  or  affected  delay,  the  Court  of  Admi- 
ralty would  have  made  an  order  for  bringing  her  immediately  to 
London,  her  port  of  delivery,  upon  reasonable  terms. 

Therefore  it  is  most  clear,  that  upon  the  26th  of  June  the  ship 
had  sustained  no  other  loss  by  reason  of  the  capture  than  a  short 
temporary  obstruction,  and  a  charge  which  the  defendant  had  offered 
to  pay  and  satisfy. 

This  brings  the  whole  to  the  fourth  and  last  point. 

The  plaintiff's  demand  is  for  an  indemnity.  His  action,  then, 
must  be  founded  upon  the  nature  of  his  damnification,  as  it  really 
is,  at  the  time  the  action  is  brought.  It  is  repugnant,  upon  a  con- 
tract of  indemnity,  to  recover  as  for  a  total  loss,  when  the  final  event 
has  decided  that  the  damnification,  in  truth,  is  an  average,  or  perhaps 
no  loss  at  all. 

Whatever  undoes  the  damnification,  in  whole  or  in  part,  must 
operate  upon  the  indemnity  in  the  same  degree.  It  is  a  contradic- 
tion in  terms,  to  bring  an  action  for  indemnity,  when,  upon  the 
whole  event,  no  damage  has  been  sustained.  This  reasoning  is  so 
much  founded  in  sense  and  the  nature  of  the  thing,  that  the  com- 
mon law  of  England  adopts  it  (though  inclined  to  strictness). 
The  tenant  is  obliged  to  indemnify  his  landlord  from  waste  ;  but  if 
the  tenant  do,  or  suffer  waste  to  be  done,  in  houses,  yet,  if  he  repair 
before  any  action  brought,  there  lies  no  action  of  waste  against  him  ; 
but  he  cannot  plead  "  non  fecit  vastum  ;  "  but  the  special  matter. 
The  special  matter  shows,  that  the  injury  being  repaired  before  the 
action  brought,  the  plaintiff  had  no  cause  of  action ;  and  whatever 
takes  away  the  cause  takes  away  the  action. 

Suppose  a  surety  sued  to  judgment,  and  afterwards,  before  an 
action  brought,  the  principal  pays  the  debt  and  costs,  and  procures 
satisfaction  to  be  acknowledged  upon  record  ;  the  surety  can  have 
no  action  for  indemnity,  because  he  is  indemnified  before  any  action 
brought.  If  the  demand  or  cause  of  action  does  not  subsist  at  the 
time  the  action  is  brought,  the  having  existed  at  any  former  time 
can  be  of  no  avail. 

But,  in  the  present  case,  the  notion  of  a  "vested  right  in  the 
plaintiff  to  sue  as  for  a  total  loss  before  the  recapture  "  is  fictitious 
only,  and  not  founded  in  truth.  For  the  insured  is  not  obliged  to 
abandon,  in  any  case ;  he  has  an  election.    No  right  can  vest  as  for 


SECT.  IV.  —  CRITERION    OF  TIME.  117 

No.  8.  —  Hamilton  v.  Mendez. 

a  total  loss,  till  he  has  made  that  election.  He  cannot  elect  before 
advice  is  received  of  the  loss  :  and  if  that  advice  shows  the  peril  to 
be  over,  and  the  thing  in  safety,  he  cannot  elect  at  all ;  because  he 
has  no  right  to  abandon  when  the  thing  is  safe. 

Writers  upon  the  marine  law  are  apt  to  embarrass  general  princi- 
ples with  the  positive  regulations  of  their  own  country  :  but  they 
seem  all  to  agree,  "  that  if  the  thing  is  recovered  before  the  money 
paid,  the  insured  can  only  be  entitled  according  to  the  final  event." 

Roccius,  who  collects  the  opinions  of  all  the  authors  before  his 
time,  and  draws  conclusions  or  maxims  (solutions  of  questions)  from 
them,  which  he  calls  notabilia,  in  the  place  cited  at  the  bar  (Fo. 
204,  Not.  50),  puts  this  question :  "  Assecurator,  qui  jam  solvit 
sestimationem  mercium  deperditarum,  si  postea  dictae  merces  appa- 
reant,  et  recuperate  sint,  an  possit  cogere  dominum  ad  accipieudas 
illas,  et  ad  reddendam  sibi  aestimationem,  quam  dedit?"  The  an- 
swer is  :  "  Distingue.  Aut  merces,  vel  aliqua  pars  ipsarum  appareant, 
et  restitui  possint,  ante  solutionem  lestimationis;  et  tunc  tenetur 
dominus  mercium  illas  recipere,  et  pro  ilia  parte  mercium  appa- 
rentium  liberabitur  assecurator:  nam  qui  tenetur  ad  certain  quan- 
titatem  respectu  certre  speciei,  dando  illam,  liberatur,  ut  ibi  probatnr. 
Et  etiam  (another  reason,  perhaps  a  better),  quia  contractus  assecu- 
rationis  est  conditionalis  ;  scilicet,  si  merces  deperdantur  :  non  autem 
dicuntur  deperditee,  si  postea  reperiantur.  Verum  si  merces  non 
appareant  in  ilia  pristina  bonitate,  aliter  fit  aestimatio  ;  non  in  totum, 
sed  prout  hinc  valent,"  Aut  vero  post  solutam  aestimationem  ab 
assecuratore,  "compareant  merces  :  et  hinc  est  in  electione  mercium 
assecurati,  vel  recipere  merces,  vel  retinere  pretium." 

In  the  case  of  Spencer  v.  Franco,  though  upon  a  wager  policy,  the 
loss  was  held  not  to  be  total,  after  the  return  of  the  ship  Prince 
Frederick  in  safety;  though  she  had  been  seized  and  long  kept  by 
the  King  of  Spain,  in  a  time  of  actual  war. 

In  the  case  of  Pole  v.  Fitzgerald,  though  upon  a  wager  policy,  the 
majority  of  the  Judges  and  the  House  of  Lords  held  there  was  n<> 
total  loss,  the  ship  having  been  restored  before  the  end  of  the  four 
months. 

The  present  attempt  is  the  first  that  ever  was  made  to  charge  the 
insurer  as  for  a  total  loss,  upon  an  interest-policy,  after  the  thing 
was  recovered.  And  it  is  said,  the  judgment  in  the  case  of  Goss  v. 
Withers  gave  rise  to  it. 

It  is  admitted,  that  ease  was  no  way  similar.     Before  that  action 


118  ABANDONMENT. 


No.  8.  —  Hamilton  v.  Mendez. 


was  brought,  the  whole  ship  and  cargo  were  literally  lost ;  at  the 
time  of  the  offer  to  abandon,  a  fourth  of  the  cargo  had  been  thrown 
overboard  ;  the  voyage  was  entirely  lost ;  the  remainder  of  the  cargo* 
was  fish  perishing,  and  of  no  value  at  Milford  Haven,  where  the 
ship  was  brought  in  ;  the  ship  so  shattered,  as  to  want  great  and 
expensive  repairs ;  the  salvage  was  one  half,  and  the  insurer  did 
not  engage  to  be  at  any  expense ;  it  did  not  appear  that  it  was 
worth  while  to  try  to  save  anything  ;  and  the  recaptor  (though 
entitled  to  one  half,  as  well  as  the  owner  of  the  ship  and  cargo), 
left  the  whole  to  perish,  rather  than  be  at  any  further  trouble  or 
expense. 

But  it  is  said,  "  though  the  case  was  entirely  different,  some  part 
of  the  reasoning  warranted  the  proposition  now  inferred  by  the 
plaintiff  from  it." 

The  great  principle  relied  upon  was,  "  that  as  between  insurer 
and  insured,  the  contract  being  an  indemnity,  the  truth  of  the  fact 
ought  to  be  regarded  ;  and,  therefore,  there  might  be  a  total  loss  by 
a  capture,  which  could  not  operate  a  change  of  property  ;  and  a  re- 
capture should  not  relate  by  fiction  (like  the  Roman  jus  postliminii) 
as  if  the  capture  had  never  happened,  unless  the  loss  was  in  truth 
recovered." 

This  reasoning  proved,  e  eonverso,  that  if  the  thing  in  truth  was 
safe,  no  artificial  reasoning  shall  be  allowed  to  set  up  a  total  loss. 

The  words  quoted  at  the  bar  were  certainly  used,  "  that  there  is 
no  book,  ancient  or  modern,  which  does  not  say  that  in  case  of  the 
ship  being  taken,  the  insured  may  demand  as  for  a  total  loss,  and 
abandon."  But  the  proposition  was  applied  to  the  subject-matter  ; 
and  is  certainly  true,  provided  the  capture,  or  the  total  loss  occa- 
sioned thereby,  continue  to  the  time  of  abandoning  and  bringing 
the  action. 

The  case  then  before  the  court  did  not  make  it  necessary  to 
specify  all  the  restrictions.  But  I  will  read  to  you,  verbatim,  from 
my  notes  of  the  judgment  then  delivered,  what  was  said,  to  prevent 
any  inference  being  drawn,  beyond  the  case  then  determined.  I 
said,  "  In  questions  upon  policies,  the  nature  of  the  contract,  as  an 
indemnity  and  nothing  else,  is  always  liberally  considered.  There 
may  be  circumstances  under  which  a  capture  would  be  but  a  small 
temporary  hindrance  to  the  voyage,  perhaps  none  at  all :  as  if  a  ship 
was  taken,  and  in  a  few  days  escaped  entirely,  and  pursued  her 
voyage.     There  are  circumstances,  under  which  it  would  be  deemed 


SECT.  IV.  —  CRITERION   OF  TIME.  110 

No.  8.  —  Hamilton  v.  Mendez. 

an  average  loss  :  as  if  a  ship  should  be  taken  and  afterwards  ran- 
somed." And  in  another  part,  I  said,  "  I  know  in  later  times  the 
privilege  of  abandoning  has  been  restrained.  But  there  is  no  danger 
in  the  present  case  ;  the  loss  was  total  at  the  time  it  happened  ;  it 
continued  total,  as  to  the  destruction  of  the  voyage;  a  moiety  must 
be  paid  for  salvage,  besides  other  great  costs  and  expenses;  what 
could  be  saved  of  the  goods  might  not  be  worth  the  freight  for  so 
much  of  the  voyage  as  they  had  gone  when  they  were  taken  ;  the 
cargo,  from  its  perishable  nature,  must  have  been  sold  or  thrown 
away  where  it  was  brought  in  ;  the  ship,  in  so  shattered  a  condition 
as  might  make  it  only  worth  the  materials  to  be  sold." — And  more 
to  the  same  effect. 

From  this  way  of  reasoning,  it  did  by  no  means  follow  that  if  the 
ship  and  cargo  had,  by  the  recapture,  been  brought  safe  to  the  port 
of  delivery,  without  having  sustained  any  damage  at  all,  that  the 
insured  might  abandon. 

But,  without  dwelling  longer  upon  principles  or  authorities,  the 
consequences  of  the  present  question  are  decisive.  It  is  impossible 
that  any  man  should  desire  to  abandon  in  a  case  circumstanced 
like  the  present,  but  for  one  of  two  reasons,  viz. :  Either  because 
he  has  overvalued;  or  because  the  market  has  fallen  below  the 
original  price.  The  only  reasons  which  can  make  it  the  interest  of 
the  party  to  desire,  are  conclusively  against  allowing  it. 

It  is  unjust  to  turn  the  fall  of  the  market  upon  the  insurer;  who 
has  no  concern  in  it,  and  who  could  never  gain  by  the  rise.  And 
an  overvaluation  is  contrary  to  the  general  policy  of  the  marine 
law ;  contrary  to  the  spirit  of  the  act  of  19  Geo.  2  ;  a  temptation  to 
fraud;  and  a  source  of  great  abuse:  therefore  no  man  should  be 
allowed  to  avail  himself  of  having  overvalued. 

If  the  valuation  be  true,  the  plaintiff  is  indemnified  by  being  paid 
the  charge  he  has  been  put  to  by  the  capture.  If  he  has  overvalued, 
he  will  be  a  gainer  if  he  is  permitted  to  abandon  ;  and  he  can  only 
desire  it,  because  he  has  overvalued.  This  was  avowed  upon  the 
first  argument;  and  that  very  reason  is  conclusive  against  its  being 
allowed. 

The  insurer,  by  the  marine  law,  ought  never  to  pay  less,  upon  a 
eontract  of  indemnity,  than  the  value  of  the  loss  :  and  the  insured 
ought  never  to  gain  more.  Therefore  if  there  was  occasion  to  resort 
to  that  argument,  the  consequence  of  the  determination  would  alone 
be  sufficient  upon  the  present  occasion. 


120  ABANDONMENT. 


No.  8.  —  Hamilton  v.  Mendez. 


But,  upon  principles,  this  action  could  not  be  maintained  as  for 
a  total  loss,  if  the  question  was  to  be  judged  by  the  strictest  rules 
of  common  law;  much  less  can  it  be  supported  for  a  total  loss,  as 
the  question  ought  to  be  decided,  by  the  large  principles  of  the 
marine  law,  according  to  the  substantial  intent  of  the  contract  and 
the  real  truth  of  the  fact. 

The  daily  negotiations  and  property  of  merchants  ought  not  to 
depend  upon  subtleties  and  niceties ;  but  upon  rules,  easily  learned 
and  easily  retained,  because  they  are  the  dictates  of  common  sense, 
drawn  from  the  truth  of  the  case. 

If  the  question  is  to  depend  upon  the  fact,  every  man  can  judge 
of  the  nature  of  the  loss,  before  the  money  is  paid :  but  if  it  is  to 
depend  upon  speculative  refinements,  from  the  law  of  nations  or  the 
Eoman  jus  postliminii  concerning  the  change  or  revesting  of  prop- 
erty ;  no  wonder  merchants  are  in  the  dark,  when  doctors  have 
differed  upon  the  subject  from  the  beginning,  and  are  not  yet 
agreed. 

To  obviate  too  large  an  inference  being  drawn  from  this  deter- 
mination ;  I  desire  it  may  be  understood,  that  the  point  here  deter- 
mined is,  "  that  the  plaintiff,  upon  a  policy,  can  only  recover  an 
indemnity  according  to  the  nature  of  his  case  at  the  time  of  the 
action  brought,  or  (at  most)  at  the  time  of  his  offer  to  abandon." 

We  give  no  opinion  how  it  would  be,  in  case  the  ship  or  goods 
be  restored  in  safety  between  the  offer  to  abandon  and  the  action 
brought;  or  between  the  commencement  of  the  action  and  the  ver- 
dict. And  particularly  I  desire  that  no  inference  may  be  drawn, 
"  that  in  case  the  ship  or  goods  should  be  restored  after  the  money 
paid  as  for  a  total  loss,  the  insurer  could  compel  the  insured  to  re- 
fund the  money  and  take  the  ship  or  goods : "  that  case  is  totally 
different  from  the  present,  and  depends  throughout  upon  different 
reasons  and  principles. 

Here,  the  event  had  fixed  the  loss  to  be  an  average  only,'  before 
the  action  brought ;  before  the  offer  to  abandon  ;  and  before  the 
plaintiff  had  notice  of  any  accident ;  consequently  before  he  could 
make  an  election. 

Therefore,  under  these  circumstances,  we  are  of  opinion  "  that  he 
cannot  recover  for  a  total,  but  for  an  average  loss  only  :"  the  quan- 
tity of  which  is  estimated  and  ascertained  by  the  jury. 

The  judgment  must  he  entered  up  as  for  the  average-loss  stated 
■in  the  ease. 


SECT.  IV.  —  CRITERION    OF    TIME.  121 

No.  9.  —  Bainbridge  v.  Neilson. 

Bainbridge  v.  Neilson. 

10  East,  329. 

This  was  an  action  upon  a  policy  of  assurance  upon  the  ship 
Mary,  valued  at  £6000,  at  and  from  Liverpool  to  any  port  or  ports 
in  Jamaica,  during  her  stay  there,  and  from  thence  to  her  port  of 
discharge  in  Great  Britain,  &c. ;  and  also  upon  another  policy  of 
insurance  upon  the  freight  of  the  same  ship  from  Jamaica  to  her 
port  of  discharge  in  Great  Britain,  valued  at  £4000.  At  the  trial 
at  Guildhall  a  verdict  was  found  for  the  plaintiffs  for  £139  5s.  4c?., 
subject  to  the  opinion  of  this  court  on  the  following  case. 

The  defendant  subscribed  both  the  policies  for  £200  each.  The 
plaintiffs  at  the  time  of  effecting  the  insurance,  and  also  at  the 
time  of  the  capture  after  mentioned,  were  interested  in  the  ship 
and  freight.  The  ship  sailed  in  due  time  from  Jamaica  with  a 
cargo  and  freight  bound  to  Liverpool,  and  on  the  21st  of  September, 
1807,  was  captured  on  her  voyage  home  by  an  enemy,  and  on  the 
25th  was  recaptured.  On  the  30th  of  September  the  plaintiffs 
received  intelligence  at  Liverpool  of  the  capture,  but  not  of  the 
recapture,  and  on  the  day  following  communicated  the  same  to 
the  underwriters,  and  gave  notice  of  abandonment.  On  the  2d  of 
October  the  intelligence  of  the  capture  was  confirmed ;  and  on  the 
6th  of  October,  being  five  days  after  the  notice  of  abandonment, 
the  plaintiffs  received  the  first  intelligence  of  the  recapture  of  the 
vessel,  and  that  she  then  lay  at  Lough  Swilley  in  Ireland,  in  safety, 
in  the  possession  of  the  recaptors.  This  intelligence  was  imme- 
diately communicated  to  the  underwriters,  with  notice  that  the 
plaintiffs  nevertheless  persevered  in  their  abandonment,  but  offered 
to  do  their  best  for  the  benefit  of  those  who  should  be  ultimately 
concerned  and  interested  in  the  vessel  without  prejudice  Under 
such  offer,  and  by  agreement  with  the  underwriters,  without  preju- 
dice to  either  party,  the  plaintiffs  compromised  with  the  recaptors, 
and  the  vessel  has  been  restored,  and  has  arrived  at  Liverpool, 
being  her  port  of  discharge,  according  to  the  terms  of  the  policy, 
where  she  now  is  in  safety.  And  the  owners  have  also,  without 
prejudice,  received  the  freight  of  the  goods  on  board  her,  and  the 
proportion  of  salvage  and  expenses  on  such  goods.  The  plaintiffs 
obtained  possession  of  the  vessel  at  Lough  Swilley  under  the  said 
agreement  after  notice  of  abandonment,  but  before  the  action  was 
brought,  and  the  vessel  did  not  arrive  at  Liverpool  until  after  the 


122  ABANDONMENT. 


No.  9.  —  Bainbridge  v.  Neilson. 


commencement  of  the  action.  The  ship  was  never  taken  into  an 
enemy's  port,  nor  did  she  sustain  any  damage  whilst  in  possession 
of  the  enemy.  The  amount  of  the  salvage  damages  and  charges 
upon  the  ship  is  £15  4s.  Sd.,  and  upon  the  freight  £13  lis.  5d. 
per  cent,  on  the  sum  insured.  The  defendant  paid  to  the  plaintiffs 
before  the  commencement  of  this  action  £57  12s.  2d.,  being  the 
amount  of  his  proportion  of  an  average  loss  upon  the  two  policies, 
which  sum  the  plaintiffs  accepted,  without  prejudice  to  their  claim 
to  recover  a  total  loss  under  their  abandonment.  The  question  for 
the  opinion  of  the  court  was,  whether  the  plaintiffs  were  entitled 
to  recover  for  a  total  loss?  If  they  were,  then  the  verdict  was  to 
stand  ;  if  not,  the  verdict  was  to  be  entered  for  the  defendant. 

The  case  was  argued  by  Scarlett  for  the  plaintiffs,  and  by  Holroyd 
for  the  defendants.  The  following  cases  were  cited  in  the  argu- 
ment:  Goss  v.  Withers  (1758),  2  Burr.  683;  Hamilton  v.  Mendez 
(1761),  2  Burr.  1198;  M'Carthy  v.  Abel  (1804),  5  East,  388;  7 
K.  R.  711. 

The  court  delivered  judgment  as  follows  :  — 

I. on!  Ellenborough,  C.  J.  This  is  a  case  which,  though  new  in 
specie,  is  by  no  means  new  in  principle.  And  though  Lord  Mans- 
field said,  in  Hamilton  v.  Mendez,  that  he  would  not  give  an 
opinion  how  the  case  would  be  if  the  ship  were  restored  in  safety 
1  iet  ween  the  offer  to  abandon  and  the  action  brought,  yet  there  can 
be  no  doubt  from  the  whole  of  his  reasoning  on  that  case  what  his 
decision  would  have  been  under  these  circumstances.  The  facts 
here  are  that  the  ship  was  captured  on  the  21st  of  September,  and 
recaptured  on  the  25th;  after  which,  the  plaintiff,  having  received 
intelligence  on  the  30th  of  the  capture,  but  not  of  the  recapture. 
gave  notice  of  abandonment  on  the  31st,  which  he.  persevered  in 
after  the  6th  of  October,  when  news  of  the  recapture  arrived,  and 
that  the  ship  was  safe  in  a  port  of  Ireland,  but  which  notice  the 
underwriters  did  not  accept.  And  now  it  appears  that  instead  of 
a  total  loss,  there  lias  been  a  small  partial  loss  of  £13  and  a  frac- 
tion, for  salvage  and  charges  on  the  policy  on  freight,  and  £15  and 
a  fraction  on  the  ship  policy,  and  that  no  damage  whatever  was 
sustained  by  the  ship  while  in  the  possession  of  the  enemy.  And 
the  question  is,  whether  that  which  in  the  result  turns  out  to  be 
only  a  partial  loss  to  a  trifling  extent  shall,  because  of  the  notice 
of  abandonment  given  when  a  total  loss  appeared  to  exist,  be  now 
recovered  as  a  total  loss  \     To  give  effect  to  such  an  attempt  would 


SECT.  IV.  —  CRITERION    OF   TIME.  123 

No.  9.  —  Bainbridge  v.  Neilson. 

grievously  enlarge  the  responsibility  of  underwriters;  it  would  be 
to  make  them  answerable,  not  for  the  actual  loss  sustained  by  the 
assured  whom  they  have  undertaken  to  indemnify  against  the 
risks  stated  in  the  policy,  but  for  a  supposed  total  loss  which  had 
in  fact  ceased  to  exist.  It  has  been  said  in  argument,  that  the 
•offer  to  abandon  having  been  rightly  made  at  the  time,  a  right  of 
action  vested  in  the  assured,  which  could  not  be  defeated  by  the 
subsequent  events.  But  that  proposition  is  not  only  not  true  in 
the  whole,  but  it  is  not  true  in  its  parts.  The  effect  of  an  offer 
to  abandon  is  truly  this,  that  if  the  offer  appear  to  have  been  prop- 
erly made  upon  certain  supposed  facts,  which  turn  out  to  be  true, 
the  assured  has  put  himself  in  a  condition  to  insist  upon  his  aban- 
donment; but  it  is  not  enough  that  it  was  properly  made,  upon 
facts  which  were  supposed  to  exist  at  the  time,  if  it  turn  out  that 
no  such  facts  existed,  or  that  other  circumstances  had  occurred 
which  did  not  justify  such  abandonment.  It  may  be  said  to  be 
properly  made  upon  notice  received,  and  bond  fide  credited,  by  an 
assured,  of  his  ship  having  been  wrecked,  whether  such  intelligence 
were  true  or  not,  and  though  the  letter  conveying  it  turned'  out  to 
be  a  forgery  ;  and  yet  clearly  no 'right  of  action  would  vest  in  him 
founded  upon  an  abandonment  made  upon  false  intelligence,  and 
without  anything  in  fact  to  warrant  the  giving  of  such  notice. 
What  is  an  abandonment  more  than  this,  that  the  assured  having 
had  notice  of  circumstances,  which,  if  true,  entitle  him  to  treat  tht 
adventure  as  a  total  loss,  he,  in  contemplation  of  those  circum- 
stances, casts  a  desperate  risk  on  the  underwriter,  who  is  to  save 
himself  as  well  as  he  can.  But  does  not  all  this  presume  the 
existence  of  those  facts  on  which  the  right  accrues  to  him  to  call 
upon  the  underwriter  for  an  indemnity;  and  if  they  be  all  imagi- 
nary, or  founded  in  misconception,  or  if  at  the  time  it  had  ceased 
to  be  a  total  loss,  and  there  be  no  damage  to  the  assured,  or  at 
least  if  the  only  damnification  arise  out  of  the  very  act  (the  recap- 
ture) which  saves  the  thing  insured  from  sustaining  a  total  loss, 
the  whole  foundation  of  the  abandonment  fails.  It  is  then  said 
that  if  the  right  of  abandonment  once  vested  and  be  exercised  in 
time,  it  cannot  be  devested  by  subsequent  intelligence  of  other 
circumstances  or  different  events.  But  the  case  of  McCarthy  v. 
Abel  shows  the  contrary  ;  for  there,  though  the  notice  of  aban- 
donment were  well  made  at  the  time,  it  was  not  only  devested  by 
subsequent  circumstances,  but  by  circumstances  which  happened 


124  ABANDONMENT. 


No.  9.  —  Bainbridge  v.  Neilson. 


after  the  notice  of  abandonment  had  been  given.  Next  it  is  con- 
tended that  by  the  recaptors  taking  the  ship  into  a  port  in  Ireland 
the  right  of  abandonment  was  revived,  or  a  new  right  created ;  for 
I  do  not  exactly  understand  whether  this  be  insisted  on  as  an 
entire  and  distinct  cause  of  abandonment,  or  as  connected  with  the 
antecedent  capture  and  recapture.  Now  if  it  grew  out  of  the 
recapture,  let  us  hear  what  Lord  Mansfield  said  upon  that  subject 
in  Hamilton  v.  Mendcz.  It  does  not,  he  says,  cease  to  be  a  total 
loss  because  of  the  recapture,  "  if  the  voyage  is  absolutely  lost,  or 
not  worth  pursuing "  [here  the  voyage  was  not  lost,  and  was 
worth  pursuing,  and  was  pursued  with  effect]  ;  "  if  the  salvage  is 
very  high  "  [here  it  is  very  trifling]  ;  "  if  further  expense  is  neces- 
sary ;  if  the  insurer  will  not  engage  in  all  events  to  bear  that 
expense,"  &c.  But  here  the  further  expenses  were  little  or  nothing 
beyond  the  salvage,  and  all  the  loss  has  been  actually  paid  into 
the  plaintiff's  hands.  If  after  the  recapture  the  ship  had  been 
carried  into  a  port  abroad,  and  a  sale  had  become  inevitable, 
because  nobody  would  secure  to  the  recaptors  their  'one-eighth, 
it  might  have  been  deemed  to  be  a  total  loss  ;  but  that  is  not 
the  present  case.  What  was  said  by  Lord  Mansfield,  however,  is 
sufficient  to  show  that  in  the  case  of  a  capture  and  recapture, 
it  does  not  necessarily  follow  that  the  assured  is  entitled  to 
abandon  as  for  a  total  loss,  but  it  depends  upon  circumstances, 
and  none  of  the  circumstances  enumerated  by  him  exist  in  the 
present  case.  I  cannot,  however,  consider,  as.  at  present  advised, 
that  the  right  of  abandonment  relates  only  to  the  actual  state  of 
things  at  the  time  of  the  offer  to  abandon  made.  If  it  were 
necessary  to  the  decision  of  this  case,  I  should  wish  to  have  that 
point  well  considered.  I  am  not  disposed  to  enlarge  the  grounds 
of  abandonment  against  underwriters,  a  privilege  which  everybody 
knows  has  been  much  abused.  In  almost  every  case  of  a  valued 
policy  it  is  the  interest  of  the  assured  to  abandon,  and  therefore  it 
behoves  the  court  to  watch  every  such  case,  and  in  no  instance  to 
enlarge  that  which  in  the  nature  of  the  thing  is  only  a  partial  into 
a  total  loss.  It  might  as  well  have  been  said  in  M'Carthy  v.  Abel, 
that  having  been  once  a  total  loss,  it  must  continue  so  ;  but  the 
court  held  otherwise ;  and  that  case  is  not  distinguishable  in 
this  respect  from  the  present,  except  that  eventually  there  was 
no  loss  there  of  the  subject-matter  of  the  insurance,  and  here 
there  is  only  a  partial  loss;  but  I  can  see  no  difference  whether 


SECT.  IV.  —  CRITERION    OF   TIME.  125 

No.  9.       Bainbridge  v.  Neilson. 

that  which  for  a  time  was  a  total  loss  ceased  altogether  by  subse- 
quent events  to  be  any  loss  at  all,  or  whether  it  be  reduced  by 
subsequent  events  to  so  small  a  loss  as  there  is  in  the  present 
case.  We  must  look,  as  we  lately  said  in  God/all  v.  Boldero,  9 
East,  81,  to  the  real  nature  of  the  contract  in  a  policy  of  insur- 
ance, which  is  nothing  more  than  a  contract  of  indemnity;  and 
therefore,  though  there  was  a  total  loss  there,  as  it  might  be  called, 
with  respect  to  the  subject-matter  of  the  risk  insured,  yet  that 
having  afterwards  intervened  between  the  supposed  damnification 
of  the  plaintiffs  by  the  death  of  Mr.  Pitt,  and  the  action  brought 
which  adeemed  the  loss,  it  was  held  that  they  could  not  recover. 
So  here,  as  that  which  was  supposed  to  be  a  total  loss  at  the  time 
of  the  notice  of  abandonment  first  given  had  ceased,  and  as  only  a 
small  loss  has  been  incurred  in  the  salvage,  that  is  the  real 
amount  of  the  damnification  which  the  plaintiff  is  entitled  to 
receive  under  this  contract  of  indemnity,  and  that  has  already 
been  paid  by  the  underwriters. 

Grose,  J.  This  is  a  case  upon  which  it  is  said  that  Lord  Mans- 
field, in  Hamilton  v.  Mendez,  professed  to  give  no  opinion;  but  it 
is  very  clear  what  his  opinion  would  have  been  upon  the  principles 
laid  down  by  him  in  the  same  case,  and  if  there  be  no  express 
decision  on  the  point  we  must  resort  to  principle  in  deciding  it. 
And  one  of  the  best  principles  upon  this  subject  is  that  no  arti- 
ficial reasoning  shall  turn  that  into  a  total  loss  which  in  fact  is 
only  a  partial  loss.  A  policy  of  insurance  is  only  a  promise  by 
the  underwriter  to  indemnify  the  assured  against  loss  by  certain 
risks ;  and  if  so,  how  can  the  plaintiff  claim  a  total  loss,  when  in 
fact  the  vessel  insured  has  performed  her  voyage,  and  he  has  only 
sustained  an  actual  loss  of  £15  4s.  Sd.  per  cent,  on  the  ship,  and 
£13  lis.  M.  per  cent,  on  the  freight  insured.  The  case  states  that 
which  is  very  material,  that  the  plaintiff  had  possession  of  the  ship 
again  after  the  recapture,  and  before  the  action  brought ;  that  she 
sustained  no  damage  from  the  capture  while  she  continued  in  the 
possession  of  the  enemy ;  and  that  she  has  been  restored  and  has 
arrived  at  her  port  of  discharge ;  and  that  the  freight  has  been 
received  by  the  owners.  What  pretence,  then,  is  there  for  saying 
that  this  is  a  total  loss,  where  no  damage  has  been  done  to  the 
ship,  and  only  a  trifling  expense  incurred  for  the  salvage  and 
charges  of  the  recapture  ?  We  must  look  here  to  the  time  of  the 
action  brought  to  see  whether  there  has  been  a-  total  loss  of  the 


126  ABANDONMENT. 


No.  9.  —  Bainbridge  v.  Neilson. 


subject-matter  to  the  plaintiff,  as  lie  alleges  ;  and  it  is  clear  that  at 
that  time  there  was  not  a  total  but  only  a  small  partial  loss. 

Le  Blanc,  J.  I  agree  in  opinion  that  there  must  be  judgment  for 
the  defendant  upon  this  case,  which  though  new  in  circumstances 
is  not  so  new  in  principle.  The  main  stress  of  the  plaintiff's  argu- 
ment has  been,  that  at  the  time  of  the  notice  of  abandonment  he 
had  a  right  to  abandon.  But  there  is  the  fallacy  of  it.  It  does 
not  follow  that  he  had  a  right  to  abandon  because  he  had  a  right 
to  give  notice  of  abandonment  upon  the  faith  of  the  intelligence 
first  received.  At  the  time  of  the  capture  he  had  a  right  to  give 
such  notice  ;  but  at  the  time  when  the  notice  was  actually  given 
the  ship  had  been  recaptured  and  was  carried  into  Lough  Swilley  in 
Ireland,  a  port  of  the  United  Kingdom,  in  the  course  of  her  voyage 
home  ;  and  there  is  no  evidence  of  any  damage  sustained  either  by 
plunder  of  or  by  mischief  done  to  the  ship,  cargo,  or  crew,  which 
could  make  it  a  total  loss.  It  is  impossible  then  to  say  that  the 
want  of  knowledge  by  the  assured  of  the  true  state  of  things  shall 
vary  the  fact,  and  make  that  a  total  loss  which  is  only  a  partial 
loss.  None  of  the  decided  cases  of  total  loss  come  up  to  the 
present,  and  not  even  the  cases  put  by  Lord  Mansfield  in  Hamilton 
v.  Mendez.  The  plaintiff  knew  of  some  of  the  circumstances,  but 
did  not  know  them  all.  The  mere  circumstances  of  capture  and 
recapture  will  not  make  it  a  total  loss.  It  may  often  happen  that 
intelligence  is  received  which  will  justify  the  giving  notice  of  an 
abandonment ;  but  if  circumstances  so  turn  out,  that  there  is  no 
total  loss,  it  does  not  follow  that  the  assured  would  be  entitled  to 
insist  on  his  notice.  In  M'Carthyv.  Abel  the  assured  was  justified 
in  giving  notice  of  abandonment,  but  circumstances  happened 
afterwards  which  showed  that  there  was  no  loss  of  the  subject- 
matter.  So  here,  circumstances  have  turned  out  to  show  that  only 
a  partial  and  not  a  total  loss  has  been  sustained,  though  the  notice 
of  abandonment  were  properly  given  at  the  time  upon  the  intelli- 
gence then  received.  This  case  falls  in  very  much  with  an  expres- 
sion used  by  the  Chief  Justice  in  delivering  the  judgment  of  the 
Court  of  Common  Pleas  in  a  late  case  of  Thellusson  v.  Sheddcit,  2 
New  Rep.  230,  where  he  says,  "  it  is  true  that  a  capture  simply 
proved  establishes  a  total  loss ;  but  when  the  plaintiff  in  the  same 
breath  proves  a  recapture,  there  is  an  end  of  the  capture  and  total 
loss,  and  the  plaintiff  is  entitled  to  a  partial  loss  only."  So  here, 
though  a  capture  were  proved,  yet  it  also  appearing  that  there  was 


SECT.  IV.  —  CRITERION    OF   TIME.  127 

No.  9.  —  Bainbridge  v.  Neilson. 

a  recapture  ;    unless  it  be  also  shown   that,  notwithstanding  the 
recapture,  it  still  continued  a  total  loss,  it  is  only  a  partial  loss. 

Bayley.  J.  The  case  has  been  so  fully  discussed  that  I  can  add 
nothing  to  make  it  more  clear.  A  policy  of  insurance  is  only  a 
cuii tract  of  indemnity,  and  anything  which  tends  to  show  that  an 
assured  can  recover  beyond  his  indemnity  is  against  the  very  prin- 
ciple of  the  contract ;  and  here  it  would  plainly  lead  to  fraud  if 
the  plaintiff,  who  has  in  fact  only  sustained  a  partial  loss  to  a  small 
extent,  could  recover  beyond  what  would  indemnify  that  loss. 
But  it  is  said,  that  upon  receiving  intelligence  he  had  a  right  t<» 
abandon  immediately.  I  agree  that  it  was  prudent  in  him  to  give 
such  notice  at  the  time,  and  if  things  had  stood  in  the  same  situa- 
tion he  would  have  been  entitled  to  abandon ;  but  I  consider  that 
notice  as  including  this  implied  condition,  that  things  continued  to 
exist  as  the  plaintiff  supposed  they  did  exist  at  the  time  when  he 
gave  the  notice  ;  and  if  anything  happened  afterwards  to  make 
that  a  partial  which  at  one  time  was  a  total  loss,  the  ignorance  of 
that  fact  by  the  assured  would  not  make  it  a  total  loss.  The  case 
of  M'Carthy  v.  Abel  shows  that  subsequent  facts  will  vary  the 
right  of  the  party  to  abandon  as  for  a  total  loss,  when  ultimately 
no  loss  is  incurred  within  the  policy.  Suppose  a  capture,  and  the 
captors  afterwards  give  up  the  ship,  and  she  pursues  her  voyage  as 
before,  and  the  assured,  receiving  intelligence  of  the  capture,  but 
not  of  the  release,  give  notice  to  abandon  ;  yet  if  the  voyage  be 
afterwards  performed,  would  that  entitle  the  assured  to  make  it  a 
total  loss,  when  he  had  sustained  no  actual  loss  at  all,  though  the 
voyage  might  have  been  a  little  delayed  ?  Yet  that  would  show 
that  circumstances  happening  after  a  total  loss  once  existing  ma\ 
take  away  the  right  to  abandon.  Then  if  the  fact  be  that  at  the 
time  of  the  notice  to  abandon  given,  it  was  not  a  total  but  only  a 
partial  loss,  the  giving  such  notice  could  not  entitle  him  to  aban- 
don as  for  a  total  loss.  By  deciding  that  in  all  these  cases  the 
right  of  the  party  to  abandon  shall  depend  upon  the  actual  circum- 
stances of  the  case,  and  not  upon  those  which  are  merely  supposed 
to  exist  at  the  time,  no  injustice  will  be  done,  and  it  will  make  the 
policy  that  which  it  ought  to  be,  and  really  is,  a  contract  of 
indemnity. 

Postea  to  the  Defendant. 


128  ABANDONMENT. 


Nos.  8,  9.  —  Hamilton  v.  Mendez,  &,c.  —  Notes. 


ENGLISH  NOTES. 

Insurance  on  ship  from  Jamaica  cruising  for  four  months,  commen- 
cing 14th  June,  1744,  free  from  average.  The  ship  was  a  privateer 
Jul}-  commissioned.  After  cruising  for  two  months  the  crew  mutinied, 
hrougbt  the  ship  safe  into  port  at  Jamaica,  and  there  deserted  her. 
Held,  that  the  assured  could  not  recover.  The  insurance  was  on  the 
ship,  and  not  on  the  voyage.  And  if  it  were  an  insurance  on  the  profits 
of  the  cruise,  non  constat  that  the  assured,  who  was  the  owner  of  the 
ship,  had  any  interest.  Pole  v.  Fitzgerald,  in  error  (1752),  Willes, 
641;  Fitzgerald  v.  Pole  (H.  L.  1754),  5  Bro.  P.  C.  439. 

An  insurance  upon  ship  A.  from  X.  to  Y.  is  an  insurance  upon  the 
ship  for  the  voyage.  If  either  the  ship  or  the  voyage  is  lost,  that  is  a 
total  loss.  But  after  the  ship  has  performed  the  voyage,  although  so 
damaged  as  not  to  he  worth  repairing,  the  owners  are  not  entitled  to 
abandon.    Cazalet  v.  St.  Barbe  (K.  B.  1786),  1  T.  B.  187;  1  B.  B.  178. 

Where  the  insured  ship  has  been  captured  and  then  purchased  in  the 
foreign  prize  court  by  the  captain  on  account  of  the  owners,  no  abandon- 
ment having  been  made  while  the  ship  was  in  the  possession  of  the 
enemy,  the  assured  cannot  recover  as  for  a  total  loss.  McMasters  v. 
Shoolbred  (K  P.  coram  Lord  Ken  vox,  1794),  1  Esp.  237;  5  R.  B.  735. 

In  this  connection  should  again  be  noted  the  statement  by  Lord 
Ellenborough  in  Anderson  v.  Wallace  (K.  B.  1813),  2  M.  &  S.  240, 
cited  on  p.  33,  ante. 

Insurance  on  goods  on  board  ship  A.  from  Liverpool  to  Quebec.  Cap- 
ture reported  13th  October  to  owner,  who  immediately  offered  to  aban- 
don and  demanded  payment  as  on  a  total  loss.  The  underwriters  refused 
to  accept  the  abandonment  or  to  pay.  On  27th  October,  ship  and  cargo 
were  recaptured.  Part  of  the  cargo  was  sold  to  pay  the  salvage,  and 
the  rest  arrived  at  Quebec  in  following  May,  having  lost  the  chance  of 
arrival  before  the  closing  of  the  navigation  of  the  St.  Lawrence.  Meld, 
by  Lord  Ellenborough,  C.  J.,  Le  Blanc,  J.  and  Bayley,  J.,  that 
the  plaintiff  could  only  recover  for  a  partial  loss.  Lord  Ellenborough 
took  notice  of  the  doubts  as  to  Bainbridge  v.  Neilson  said  to  have  been 
expressed  by  Lord  Eldon  in  the  House  of  Lords  (in  Smith  v.  Bobert- 
son,  p.  17.  a nte),  and  stated  that  he  was  unable  to  see  any  reason  for 
receding  from  that  judgment.  Bayley,  J.  said:  "Lord  Mansfield,  in 
Hamilton  v.  Mendez,  expressed  his  opinion  that  it  would  be  repugnant 
upon  a  contract  of  indemnity  to  recover  as  for  a  total  loss  where  at  the 
time  of  action  brought  it  turns  out  that  the  loss  is  only  partial,  and  so 
it  appears  to  me  in  this  case,  the  plaintiff  can  only  recover  in  respect 
of  that  which  constituted  a  loss  at  the  commencement  of  the  action." 
Patterson  v.  Ritchie  (K.  B.  1815),  4  M.  &  S.  393. 


SECT.  IV.  —  CRITERION    OF   TIME.  129 

Nos.  8,  9.  —  Hamilton  v    Mendez,  &c.  —  Notes. 

A  ship  is  seized  in  a  foreign  port  by  officers  of  government  there,  sold 
by  an  illegal  sentence  of  a  court  assuming  authority  there,  and  repur- 
chased with  money  obtained  on  bottomry  bond  by  the  captain,  who 
brings  the  ship  home.  Held,  that  the  ship  having  been  restored  so  that 
the  owners  have  the  right  and  power  to  take  possession  of  her,  they 
cannot  recover  on  a  policy  as  for  a  total  loss.  Wilson  v.  Forster  (Ex. 
1815),  6  Taunt.  25. 

Insurance  on  ship  for  a  voyage  from  Rio  de  Janeiro  to  Liverpool. 
The  ship  was  captured  by  ah  American  privateer.  The  crew  was  put 
on  board  a  Portuguese  vessel  bound  for  Liverpool,  and  on  arrival 
there  23d  April,  gave  notice  of  the  capture.  The  owners  promptly 
abandoned.  Subsequently  the  ship  was  recaptured,  and  information  of 
this  reached  the  owners  on  15th  June.  On  the  24th  June  the  ship  and 
cargo  arrived  in  the  port  of  Liverpool.  The  action  was  commenced  on 
the  10th  November.  Held  (by  Lord  Ellenborough,  C.  J.,  Bayley, 
J.,  Abbott,  J.,  and  Holroyd,  J.),  that  the  assured  could  recover  on  a 
partial  loss  only.  Lord  Ellexborough  founded  his  judgment  on  the 
doctrine  laid  down  by  Lord  Mansfield  in  Hamilton  v.  Mendez,  and 
tbe  decision  of  Bainbridge  v.  Neilson.  He  observed  that  the  judgment 
in  the  latter  case  was  based  on  the  principle  established  in  Godsall  v. 
Boldero,  9  East,  372,  that  the  assured  could  only  demand  an  indem- 
nity.    Brotherston  v.  Barber  (K.  B.  1816),  5  M.  &  S.  418. 

A  ship  damaged  in  a  storm  is  deserted  by  the  crew  under  the  neces- 
sity of  saving  their  lives.  The  deserted  ship  is  brought  into  port  by 
salvors,  and  sold  under  decree  of  the  Admiralty  Court  at  Rhode  Island 
in  America.  The  assured,  who  were  at  New  York,  took  no  means  — 
as  they  might  have  done  —  to  prevent  the  sale;  and  there  remained  a 
considerable  balance  in  court  after  payment  of  the  salvage  and  costs. 
Held,  that  the  desertion  did  not  of  itself  constitute  a  total  loss,  and 
that  the  plaintiff,  not  having  taken  steps  to  prevent  the  sale  nor  having 
shown  the  necessity  of  it,  had  no  right  to  abandon.  Thornely  v.  Hebson 
(K.  B.  1819),  2  B.  &  Aid.  51-3. 

Assured  on  goods,  after  hearing  of  the  capture  of  the  ship,  and  after  a 
recapture  had  taken  place,  but  before  hearing  of  the  recapture,  gave  notice 
of  abandonment.  Ultimately  the  goods  were  brought  to  the  port  of 
destination,  and  there  warehoused  by  the  master.  Held,  that  the  assured 
could  not  recover  as  on  a  total  loss.  Opinion  expressed  that,  by  English 
law,  oirthe  authorities  of  Bainbridge  v.  Neilson,  Patterson  v.  Ritchie, 
and  Brotherston  v.  Barber,  and  notwithstanding  the  doubts  of  a  high 
authority  (Lord  Eldon),  in  Smith,  v.  Robertson  (p.  17,  ante),  the  rule 
is  established  that  abandonment  is  to  be  viewed  with  regard  to  the  ulti- 
mate state  of  facts  as  appearing  before  the  action  is  brought.  Naylor  v. 
Taylor  (K.  B.  1829),  9  B.  &  C.  718.    See  also,  as  an  instance  of  a  case 

VOL.   I.  —  0 


130  ABANDONMENT. 


Nos.  8,  9.  —  Hamilton  v.  Mendez,  &t,c.  —  Notes. 


where  the  state  of  facts  existed  at  the  time  of  abandonment  and  at  the 
time  of  action  brought,  and  where  the  assured  recovered  as  on  a  total 
loss, —  although  the  goods  probably  arrived  safe  in  the  end, —  the  case 
of  Bodonachi  v.  Elliot,  cited  under  No.  1,  p.  19,  ante. 

Where  the  assured  receives  full  and  trustworthy  information  that  the 
subject-matter  is  in  imminent  danger  of  becoming  a  total  loss,  he  is 
bound,  in  order  to  enable  him  t<>  recover  for  a  constructive  total  loss, 
immediately  to  give  notice  of  abandonment  to  the  underwriters ;  and 
his  omission  to  do  so  will  not  be  excused  because  afterwards  the  subject 
matter  of  the  insurance  is  justifiably  sold.  So  held,  in  a  case  of  policy 
on  ship  bound  from  Saigon  to  Hong  Kong,  where  the  ship  had  struck 
on  a  rock,  was  brought  back  to  Saigon,  reported  on  as  a  constructive 
total  loss,  and  sold  by  order  of  the  insurers.  Kaltenbach  v.  Mackenzie 
(C.  A.  1878),  3  C.  P.  D.  467  ;  48  L.  J.  C.  P.  9. 

AMERICAN   NOTES. 

The  assured  cannot  abandon  upon  a  mere  apprehension  of  total  loss,  and 
afterward  sustain  the  abandonment  by  facts  subsequently  coming  to  Ins 
knowledge.  Abandonment  can  only  be  made  for  a  total  loss,  and  the  insured 
must  be  advised  of  such  a  loss  before  he  can  elect  to  abandon..  Bosh// 
v.  Chesapeake  Ins.  Co.,  3  Gill  &  Johnson  (Maryland),  450;  22  Am.  Dec.  3-">7. 
citing  Suydam  v.  Marine  Ins.  Co.,  1  Johnson  (New  York),  181;  3  Am.  Dec. 
307.  To  same  effect,  Teasdale  v.  Charleston  Ins.  Co.,  2  Brevard  (So.  Car.), 
190;  3  Am.  Dec.  705. 

A  constructive  total  loss  must  continue  to  the  time  of  abandonment. 
Olwerav.  Union  Ins.  Co.,  3  Wheaton  (U.  S.  Sup.  Ct,),  183;  Fullon  Ins.  Co. 
v.  Goodman,  32  Alabama,  108  ;  Cincinnati  Ins.  Co.  v.  Bakewell,  4  B.  Monroe 
(Kentucky),  511  ;  Lee  v.  Boardmau,  3  Mass.  2:58:  Hallelt  v.  Peyton,  1  Caines' 
Cases  (X.  Y.),  28;   Dutilh  v.  Gatllff,  1  Dallas  (Penn.).  440. 

The  right  to  abandon  as  for  total  loss  depends  on  the  state  of  facts 
actually  existing  at  the  time  of  the  offer  to  abandon,  and  not  on  the  state  of 
the  information  received.  Marshall  v.  Delaware  Ins.  Co.,  4  Cranch  (U.  S. 
Sup.  Ct.).  202;  Dickey  v.  American  Ins.  Co.,  3  Wendell  (X.  Y.  Ct.  of  Errors), 
05S. 

The  right  to  abandon  is  dependent  on  the  probabilities  at  the  time  the 
right  is  exercised,  and  is  not  affected  by  the  subsequent  rescue  of  the  vessel 
or  the  diminution  of  the  supposed  loss.  Orient  Ins.  Co.  v.  Adams,  123 
l'.  S.  67. 

Story,  J.,  says,  in  Peele  v.  Merchants'  Ins.  Co.,  3  Mason  (U.  S.  Circ.  Ct.),  37, 
that  "the  right  of  abandonment  is  to  be  decided  by  the  actual  facts  at  the 
time  of  the  abandonment,  and  not  merely  by  the  information  of  the  assured," 
and  "  no  prior  or  subsequent  events  will  give  it  any  greater  efficacy,"  and 
continues :  "  The  rule  in  the  English  courts  is,  as  we  all  know,  very  different. 
There  it  has  been  held  that  if  an  abandonment  be  rightfully  made,  it  is  not 
absolute,  but  may  be  controlled  by  subsequent  events  ;  so  that  if  the  loss  has 
ceased  to  be  total  at  any  time  before  action  brought,  the  abandonment  becomes 


SECT.  IV.  —  CRITERION    OF    TIME.  131 

Nos.  8,  9.  —  Hamilton  v.  Mendez,  &-c.  —  Notes. 

inoperative."  Citing  Bainbridge  v.  Neilson.  "  The  eases  in  which  this  doctrine 
has  been  asserted  do  not,  in  my  humble  judgment,  present  any  solid  reasons 
to  support  it." 

Of  Hamilton  v.  Mendez,  Ch.  J.  Tilghman.  in  Dutilli  v.  Gatliff,  5  Dallas 
(Penn.  Sup.  Ct.),  449,  said:  "There  is  no  doubt  of  the  soundness  of  the 
principle  :  I  mean  that  a  policy  is  a  contract  of  indemnity.  The  only  ques- 
tion is,  at  what  period  the  rights  of  the  parties  are  to  be  tested  by  this 
principle ;  whether  at  the  time  of  abandonment  or  of  the  commencement  of 
the  action.  I  have  considered  attentively  the  case  of  Hamilton  v.  Mendez. 
It  must  be  obvious  to  every  one  that  the  decision  in  that  case  was  perfectly 
right.  It  was  simply  this:  that  a  man  shall  not  be  permitted  to  abandon, 
and  recover  for  a  total  loss,  when  he  knew,  at  the  time  of  his  offer  to  abandon. 
that  his  property,  which  had  been  lost,  had  been  restored,  and  the  voyage  very 
little  injured.  But  in  reading  the  opinion  of  Lord  Mansfield,  we  find  a  want 
of  accuracy  with  which  that  great  man  was  seldom  chargeable.  Sometimes 
it  appears  as  if  he  thought  the  period  for  fixing  the  rights  of  the  insurers  and 
insured  was  the  commencement  of  the  suit ;  sometimes,  the  time  of  abandon- 
ment ;  and  sometimes  he  even  seems  to  extend  his  ideas  so  far  as  the  time  of 
the  verdict.  But  finally  he  explicitly  declares  that  he  decides  nothing  but  the 
point  before  him.  He  seems  to  have  felt  a  little  sore  at  the  improper  applica- 
tion of  some  general  expressions  used  by  him  in  the  case  of  Goss  v.  Withers. 
Anxious  to  cut  off  all  pretence  for  doing  the  same  in  Hamilton  v.  Mendez,  he 
has  taken  too  much  pains  to  avoid  the  possibility  of  misrepresentation. 
Hence  his  argument,  considered  in  the  detail,  is  not  altogether  clear  and 
consistent.  Upon  the  whole  of  this  case  of  Hamilton  v.  Mendez,  I  consider  it 
most  safe  to  confine  its  authority  to  the  point  actually  decided,  which  was 
very  different  from  that  we  are  now  considering."  And  the  court  held  the 
rights  fixed  as  of  the  time  of  abandonment. 

In  Maryland,  frc.  Ins.  Co.  v.  Bathurst,  5  Gill  &  Johnson  (Maryland),  l':>0,  is 
quoted  that  part  of  Lord  Mansfield's  opinion  in  Goss  v.  Withers,  2  Burr.  694, 
"  which  declares  that  '  the  insurer  runs  the  risk  of  the  insured,  and  under- 
takes to  bear  the  loss  actually  sustained,  and  can  be  liable  to  no  more.  So 
that  if  after  condemnation  the  owner  recover  the  ship  in  her  complete  con- 
dition, but  has  paid  salvage  or  been  at  any  expense  in  getting  her  back,  tin- 
insurer  must  bear  the  loss  so  actually  sustained,' "  and  of  this  the  court  say  : 
"  This  may  be  sound  doctrine  in  England,  where  it  is  held  that  the  right  to 
recover  for  a  total  loss  is  not  made  absolute  by  the  state  of  facts  on  which  the 
abandonment  is  founded  continuing  to  exist  at  the  date  of  the  abandonment, 
but  is  dependent  on  subsequent  events.  Tn  this  country  a  different  rule 
prevails.  The  right  to  recover  of  the  assurer,  for  a  total  loss,  is  complete  it' 
the  loss  which  is  its  basis  continue  at  the  time  of  the  abandonment,  .and  of 
this  consummate  right  or  privilege  the  assured  cannot  without  default 
be  deprived  but  by  their  consent,  express  or  implied."  "  We  are  aware  that 
this  question  has  been  apparently  otherwise  decided  in  some  of  the  United 
States,  and  especially  in  New  York." 


132  ABANDONMENT. 


No.  10.  —  Mitchell  v.  Edie.  —  Rule. 


No.  10. —MITCHELL   v.    EDIE. 

(k.  b.  1787.) 

RULE. 

When  the  assured  receives  intelligence  of  such  a  loss  as 
entitles  him  to  abandon,  he  must  make  his  election,  and 
(if  he  elects  to  abandon)  give  notice  to  the  underwriters 
within  a  reasonable  time  :  otherwise  he  wraives  his  right  to 
abandon  and  can  recover  only  as  for  an  average  loss. 

Mitchell  v.   Edie. 

1  T.  II.  608;     1  R.  R.  .318. 

This  was  an  action  on  a  policy  of  insurance  on  goods  on  board 
the  ship  Lady  Mansfield  "  from  Jamaica  to  London."  The  de- 
fendant paid  into  court  a  sum  of  money  on  account  of  an  average 
loss.  At  the  trial  before  Buller,  J.,  at  the  last  Sittings  at  Guildhall, 
the  cause  was  ultimately  referred  to  one  of  the  jury  to  consider 
what  was  due  to  the  plaintiffs,  who  found  that  nothing  was  due  ; 
and  thereupon  a  verdict  was  entered  for  the  defendant.  And  now, 
upon  a  motion  for  a  new  trial,  the  following  facts  were  reported ; 
the  ship  was  captured  in  the  course  of  her  voyage  by  an  American 
privateer,  and  a  few  days  afterwards  the  captor,  having  stripped 
her  of  her  stores,  and  part  of  her  rigging,  and  having  taken  out  some 
of  the  hands,  set  her  at  liberty.  There  was  a  clause  in  the  policy 
to  exempt  the  underwriters  from  average  losses  under  £3  per  cent. 
And  the  part  of  her  cargo  taken  out  did  not  amount  to  that  sum. 
In  consequence  of  this  loss  of  part  of  the  crew,  it  became  impos- 
sible for  the  ship  to  pursue  her  voyage,  and  she  was  obliged  to  bear 
away  to  Charles  Town,  where  she  arrived  on  the  18th  of  February. 
1782.  She  was  there  put  into  the  hands  of  one  Cruden,  who  was 
a  part-owner  in  the  ship,  and  had  likewise  been  engaged  with  one 
of  the  plaintiffs  in  former  transactions.  Cruden,  in  June,  1782, 
sold  the  cargo,  and  received  the  whole  profits  of  the  sale,  but 
remitted  home  no  part  of  them.  In  his  books  he  had  given  the 
underwriters  credit  for  the  amount.  At  the  time  of  the  sale  he 
was  in  bad  circumstances,  and  afterwards  became  insolvent.  In 
June,  1783,  Cruden  came  to  England,  and  several  applications  were 


SECT.  IV.  —  CRITERION    OF   TIME.  133 

No.  10.  —  Mitchell  v.  Edie. 

made  to  him  on  the  part  of  the  plaintiffs  by  Abel,  who  had  con- 
cerns with  the  plaintiffs  as  well  as  with  Cruden,  and  who  .said  at 
the  trial,  that  the  plaintiffs  had  looked  to  Cruden  for  payment  for 
two  or  three  years ;  during  all  which  time  no  notice  of  abandon- 
ment had  been  given  by  the  plaintiffs  to  the  underwriters. 

The  learned  Judge  then  stated,  that  the  first  question  which 
had  been  made  was,  whether  the  plaintiffs  were  entitled  to  recover 
as  for  a  total  loss.  And  as  to  this  he  was  of  opinion,  that  as  there 
had  been  a  capture  which  for  a  time  had  occasioned  a  total  loss, 
the  owners  had  the  option  to  abandon  or  not  as  they  pleased ;  but 
if  they  chose  to  abandon,  they  ought  to  have  done  it  immediately 
upon  receiving  intelligence  of  the  loss ;  and  that  as  they  had  not 
done  so,  but  had  looked  to  Cruden  as  their  agent  for  payment,  he 
was  of  opinion  that  they  had  waived  their  right  to  abandon,  and 
could  only  recover  as  for  an  average  loss. 

Erskine,  Mingay,  and  Baldwin  showed  cause  against  the  rule. 
They  allowed  the  right  which  the  owners  had  to  abandon  in  con- 
sequence of  the  capture,  but  argued  that  if  they  chose  to  abandon 
they  ought  to  have  done  it  in  the  first  instance,  as  soon  as  they 
had  received  intelligence  of  the  loss,  and  should  immediately  after- 
wards have  signified  their  intention  to  the  underwriters.  Here 
they  had  given  no  such  notice  of  their  intention,  nor  had  informed 
the  underwriters  that  the  goods  were  placed  in  the  hands  of 
Cruden.  On  the  contrary,  the  plaintiffs  themselves  had  constantly 
looked  to  him  as  their  agent.  They  had  made  repeated  applica- 
tions to  him  for  payment ;  and  had  given  him  credit  for  the  space 
of  three  years. 

Bearcroft,  Cowper,  and  Adam,  on  the  other  side  contended,  that 
they  were  entitled  to  a  total  loss  ;  but  if  not  to  a  total  loss,  yet  to 
a  greater  average  loss  than  had  been  paid  into  court.  As  to  the 
first,  This  is  a  new  question  of  insurance  law  which  has  never  yet 
been  decided.  The  rule  of  law,  as  it  is  to  be  collected  from  all  the 
cases,  seems  to  be,  that,  while  everything  is  done  ho nd  fide  for  the 
benefit  of  all  the  parties  concerned,  the  assured  are  not  obliged  to 
abandon.  Here  the  ship  was  condemned  in  consequence  of  a  peril 
within  the  policy.  It  then  became  necessary  to  put  the  goods 
into  the  hands  of  some  person;  therefore  it  was  not  a  voluntary 
act  of  the  owners;  and  it  was  by  mere  accident  that  they  got 
into  the  hands  of  Cruden;  who,  as  far  as  relates  to  this  transac- 
tion, wras  totally  unconnected  with  the  plaintiffs.     Everything  was 


134  . 


ABANDONMENT. 


No.  10.  —  Mitchell  v.  Edie. 


done  in  this  instance  for  the  preservation  of  the  cargo,  which  the 
nature  of  the  case  would  admit  of.  Had  it  not  been  for  the 
capture,  which  was  a  peril  insured  against,  the  goods  would  never 
have  got  into  the  hands  of  Cruden.  At  one  time  it  is  clear  that 
the  plaintiffs  had  a  right  to  abandon.  But  then  it  is  said,  that 
from  the  great  length  of  time  which  they  suffered  to  elapse  with- 
out giving  notice  to  the  underwriters,  and  from  the  correspondence 
which  they  held  with  Cruden,  they  had  waived  that  right,  and 
had  adopted  him  as  their  agent.  It  never  yet  has  been  decided 
that  the  assured,  having  once  a  right  to  abandon,  waive  that  right 
merely  from  the  length  of  time  before  they  give  notice,  where  the 
best  is  done  for  the  benefit  of  all  concerned.  So  far  from  the 
plaintiffs  considering  Cruden  as  their  agent,  they  have  pursued  him 
adversely  the  whole  time.  Whatever  time  is  consumed  in  making 
the  best  of  an  average  loss  is  ultimately  for  the  benefit  of  the 
underwriters.      The    case    of    Plantamour    and    Staples,1    applies 


1  Plantamour  and  Others  v.  Staples,  M. 
U-2  Geo.  III.  B.  R. 

This  was  an  action  on  a  policy  of  in- 
surance on  the  ship  Duras,  at  and  from 
Marseilles  to  Madeira,  the  Cape,  and  the 
isles  id'  France,  and  Bourbon,  and  to  all 
parts  and  places  where  and  whatsoever 
in  the  East  Indies  and  Persia,  or  else- 
where beyond  the  Cape  of  Good  Hope, 
from  port  to  port,  ami  from  place  to  place, 
ami  (hiring  her  stay  and  trade  to  all  ports 
and  places,  until  her  safe  arrival  back  at 
her  last  port  of  discharge  in  France,  upon 
any  kind  of  goods,  also  upon  the  body, 
&c,  of  the  ship. 

There  was  also  a  count  for  money  laid 
out  and  expended. 

Without  going  into  the  cause,  a  verdict 
was  taken  for  the  plaintiffs  for  £60  13s. 
'.)(/.,  subject  to  the  opinion  of  the  court 
upon  the  following  case,  which  had  been 
previously  stated  and  agreed  to  by  the 
parties. 

The  plaintiffs  are  merchants  at  Geneva, 
and  on  their  own  account  and  risk,  by 
means  of  their  agents  at  Marseilles,  were 
interested  in  bullion  and  goods  and  mer- 
chandise shipped  there  on  board  the  ship 
I  luras,  consigned  to  the  plaintiffs'  corre- 
spondents at  Pondicherry,  with  directions 
to  barter  or  sell  the  same  on  their  account, 
and  to  make  the  returns  on  the  same  to 
Europe  in  other  goods,  the  produce  or 
manufacture  of  India. 


The  plaintiffs  were  also  interested  in 
the  said  ship  Duras  'I  he  ship  Duras 
sailed  from  France  on  the  voyage  insured 
in  June,  177G:  and  in  the  outward  bound 
voyage  was  by  bad  weather  totally  lost 
at  the  isles  of  Fiance  in  April,  1777.  'The 
goods  on  board  sustained  damage,  but 
great  part  of  the  bullion,  and  a  consider- 
able part  of  the  goods,  were  saved,  and, 
without  any  authority  from  the  under 
writers,  sent  forward  in  another  ship  to 
the  plaintiffs'  correspondents  at  Pondi- 
cherry, who  received  and  disposed  of  the 
same,  and  under  the  plaintiffs'  orders  in- 
vested the  produce  in  other  goods,  the 
produce  or  manufactory  of  India,  and 
shipped  the  same  on  the  plaintiffs'  ac- 
count on  board  a  ship  called  the  Pere  de 
Famille,  bound  to  France. 

The  Pere  de  Famille  sailed  from  Pon- 
dicherry for  France  in  August,  1778  ;  and 
in  the  course  of  her  voyage  home,  was 
condemned  at  the  isles  of  France,  as  un- 
fit to  proceed  to  Europe ;  whereupon  the 
plaintiffs'  goods  were  put  on  board  an- 
other ship,  called  the  Louisa  Elizabeth, 
bound  for  France;  which  ship,  with  the 
plaintiffs'  goods  so  on  board,  sailed  for 
France,  and  was  afterwards  taken  by  an 
English  privateer,  and  has  since,  with  all 
her  cargo,  been  condemned 

On  the  2<Hh  August,  1778,  several  of  the 
underwriters  on  the  policy  signed  a  memo- 
randum thereon,  whereby  they   agree  to 


SECT.  IV. CRITERION    OF    TIME. 


135 


No.  10.  —  Mitchell  v.  Edie. 


very  strongly  to  the  present;  and  shows  that  where  the  assured 
do  the  best  they  can  for  the  benefit  of  the  insurance,  if  neverthe- 
less the  goods  are  ultimately  lost,  the  underwriter  is  liable  to  pay 
after  any  length  of  time  has  elapsed  between  the  accident,  which 
was  the  original  cause  of  the  loss,  and  the  time  when  the  demand 
was  made  on  the  insurer.  There  is  besides  in  every  policy  a  clause 
which  enables  the  assured,  in  case  of  any  loss  or  misfortune,  to 
sue,  labour,  and  travail,  for  the  recovery  of  the  goods,  without 
prejudice  to  the  insurance.  This  clause  ought  to  be  construed 
liberally  and  largely,  as  it  is  introduced  for  the  benefit  of  the 
underwriters,  who  can  in  general  be  upon  the  spot  when  such 
losses  happen.  This  clause  necessarily  allows  the  assured  as  much 
time  as  they  think  proper  to  dispose  of  the  cargo  in  the  best 
manner  they  can,  before  they  exercise  their  right  to  abandon.  But 
if  in  so  doing  they  willingly  do  any  act  inconsistent  with  the 
benefit  of  all  parties,  they  immediately  lose  that  right.  It  would 
be  highly  dangerous  to  establish  that  in  each  case  the  question  of 
what  circumstances  amounted  to  a  waiver  of  the  right  of  abandon- 
ing should  be  left  to  the  jury.     That  right  still  continues  in  law, 


run  the  ri.sk  on  the  goods  saved  as  afore- 
said in  any  other  ship  or  ships,  until 
their  safe  arrival  in  France;  hut  which 
agreement  the  defendant  and  several 
others  of  their  underwriters  refuse  to 
sign,  or  give  their  consent  to. 

The  defendant  hath  paid  the  whole  of 
the  average  loss,  occasioned  by  the  loss 
of  the  ship  Diiras,  and  by  the  damage  of 
the  plaintiffs'  goods  then  on  board. 

By  the  capture  of  the  ship  Louisa 
Elizabeth  and  of  the  goods,  the  plaintiffs 
sustained  a  loss  of  £12  2s.  9</.  per  cent, 
on  the  sum  subscribed  on  the  said  policy, 
which  has  been  paid  by  all  the  under- 
writers who  signed  the  memorandum  of 
the  29th  August,  1778. 

The  question  for  the  opinion  of  the 
court  is,  Whether  the  defendant  is  liable 
to  pay  the  said  loss  of  £12  2s.  {)d.  per 
cent,  which  the  plaintiffs  have  so  sustained 
by  the  capture  and  condemnation  of  the 
ship  Louisa  Elizabeth,  and  her  cargo:  or 
if  not,  whether  the  plaintiffs  are  entitled 
to  any,  and  what,  return  of  premium  l 

After  argument  by  Piggot  for  the  plain- 
tiffs, and  Ilowartb  for  the  defendant, 

Lord  Mansfield.  There  is  not  a  particle 


of  doubt.  The  only  question  is,  whether 
the  shipping  to  Europe  was  necessary  to 
the  salvage.  It  is  admitted  that  the  de- 
fendant is  liable  upon  the  voyage  to  Pon- 
dicherry,  though  the  goods  were  conveyed 
in  another  ship  :  therefore  that  circum- 
stance makes  no  difference.  The  sale  of 
the  cargo  is  also  admitted  to  have  been 
necessary.  Then  how  were  the  proceeds 
to  be  remitted  to  Europe  ?  What  was  the 
best  way  of  getting  home  the  money  for 
the  benefit  of  the  insured  and  the  in- 
surers ?  Beyond  all  doubt  the  best  way 
was  to  invest  it  in  other  goods.  There- 
fore, that  being  done  which  was  the  best 
that  could  be  done,  the  underwriters  air- 
liable. 

WlLLES  &  ASHHURST,  Justices,  Utic  ol 
the  same  opinion. 

Buller,  J.  There  is  no  case  which  ex- 
pressly decides  that  the  captain  may 
invest  the  produce  of  the  goods  saved. 
Hut  in  Mills  and  Fletcher,  Dougl.  219,  it 
was  decided  that  the  captain  has  a  general 
power,  and  is  bound  in  duty  to  do  the 
best   for  all  concerned. 

Postea  to  the  Plaintiffs. 


136  ABANDONMENT. 


No.  10.  -  Mitchell  v.  Edie. 


till  the  assured  themselves  have  done  some  act  that  is  inconsistent 
with  the  interest  of  all  concerned.  Reasonable  time  is  always  a 
question  of  law. 

There  was  a  further  question,  not  material  to  the  purpose  of  the 
present  report,  as  to  the  question  on  the  assumption  that  the  loss 
was  to  be  treated  as  an  average  loss.  The  judgments  so  far  as 
relates  to  tha  primary  question  were  as  follows  :  — 

Ashhurst,  J.  I  apprehend  that  the  general  rule  is,  that  where 
any  part  of  the  property  insured  has  been  saved,  the  assured  can- 
not recover  as  for  a  total  loss,  unless  he  make  his  election  to 
abandon,  and  give  reasonable  notice  to  the  underwriter  of  his 
intention.  But  it  is  contended  that  the  assured  never  waive  their 
right  to  abandon,  while  they  are  managing  in  the  best  manner 
they  can  for  the  benefit  of  all  concerned ;  and  that  argument  is 
grounded  on  the  common  clause  inserted  in  every  policy,  whereby 
he  is  authorized  "  to  sue,  labour,  and  travail,  without  prejudice  to 
the  insurance."  Now  this  clause  does  not  in  my  apprehension 
warrant  the  position  in  so  large  an  extent  as  it  is  contended  for. 
It  seems  to  me  that  the  meaning  of  that  clause  is,  that  till  the 
assured  have  been  informed  of  what  has  happened,  and  have  had 
an  opportunity  of  exercising  their  own  judgment,  no  act  done  by 
the  master  shall  prejudice  their  right  of  abandonment.  And  that 
is  reasonable  ;  because,  in  general,  the  parties  live  in  this  country, 
and  the  loss  may  happen  at  a  great  distance,  so  that  they  cannot 
exercise  their  judgment  immediately ;  it  is  therefore  necessary 
that  the  master,  who  is  on  the  spot,  should  do  the  best  he  can. 
But  I  think  that  the  assured  are  bound  to  decide,  and  signify  their 
election  to  the  underwriters,  whether  they  will  abandon  or  not, 
the  first  opportunity  ;  and  for  this  reason,  that  though  the  person 
who  takes  upon  him  to  act  on  the  occasion  for  the  benefit  of  all 
concerned,  is  not  the  agent  of  the  assured,  yet  if,  upon  receiving- 
notice  of  the  loss,  they  do  not  elect  to  abandon  to  the  under- 
writers, then  they  adopt  the  acts  of  such  person,  and  make  him 
their  agent.  This  is  something  like  the  notice  which  is  necessary 
to  be  given  to  the  drawer  of  a  bill  of  exchange,  in  case  of  non-pay- 
ment, which  if  the  holder  omit  to  do,  he  is  considered  as  giving 
credit  to  the  acceptor,  and  therefore  the  loss,  if  any,  must  fall  on 
him.  There  may  be  cases  where  the  previous  acts  of  the  master 
may  not  make  him  the  agent  of  either  party,  and  he  only  acts  in 
common  for  them  both,  till  notice  is  received  by  the  parties  at 


SECT.  IV.  —  CRITERION    OF   TIME.  137 

No.  10.  —  Mitchell  v.  Edie. 

home.  If  after  such  notice  he  is  continued  in  his  agency,  he  be- 
comes the  agent  of  the  party  by  whom  he  is  so  confirmed  ;  but  lie 
cannot  be  considered  as  the  agent  for  the  underwriters,  till  notice 
has  been  given  to  them  and  they  have  had  an  opportunity  of 
exercising  their  discretion,  whether  they  will  or  will  not  continue 
him;  though,  till  notice  of  the  loss  was  first  received  by  the 
assured,  the  property  continued  at  the  risk  of  the  underwriters. 
Here  it  is  plain  that  during  the  course  of  near  three  years,  Cruden 
was  considered  by  the  assured  as  their  agent;  credit  was  given  to 
him  in  that  character;  frequent  applications  were  made  to  him 
for  payment;  and  till  his  insolvency,  there  was  no  appearance  of 
any  intention  to  disown  him  ;  that  was  the  first  moment  when  the 
assured  thought  of  abandoning. 

Buller,  J.  The  question  is  whether  the  owners  are  entitled  to 
recover  as  for  a  total  loss.  It  is  true  that  the  owners  are  not 
bound  to  abandon  ;  there  never  was  a  case  which  determined  that 
they  were ;  on  the  contrary,  all  the  cases  have  said  that  where 
they  are  entitled  to  abandon,  if  any  part  of  the  property 
exists,  they  have  the  option  whether  they  will  abandon  it  or  not. 
A  total  loss  is  of  two  sorts :  one,  where  in  fact  the  whole  of  the 
property  perishes  ;  the  other,  where  the  property  exists,  but  the 
voyage  is  lost,  or  the  expense  of  pursuing  it  exceeds  the  benefit 
arising  from  it.  I  am  of  the  same  opinion  with  my  brother 
Ashhurst,  that,  where  the  voyage  is  lost,  but  the  property  is  saved, 
the  owners  have  an  option  to  abandon  ;  but  that  unless  they  do 
elect  to  abandon,  it  is  only  an  average  loss.  Whether  many  years 
ago  it  might  not  have  been  wiser  for  the  courts  to  have  de- 
termined that  the  owners  should  not  in  any  case  abandon  where 
the  property  did  exist,  is  not  for  our  consideration.  About  the 
year  1745  that  question  was  determined  after  much  deliberation  ; 
but  still  unless  the  owners  do  some  act  signifying  their  intention 
to  abandon,  it  is  only  a  partial  loss.  The  case  cited  by  the  de- 
fendant's counsel  does  not  apply  here.  It  was  no  part  of  the  con- 
sideration of  the  court  there,  whether  the  event  which  happened 
in  the  outward-bound  voyage  should  entitle  the  assured  to  recover 
as  for  a  total  loss ;  but  the  ground  of  that  decision  was,  that,  in 
the  homeward-bound  voyage,  the  ship  was  captured  and  condemned, 
which  occasioned  a  total  loss.  The  only  question  there  was,  whether 
the  owners,  by  the  act  of  shifting  the  goods  from  one  ship  to  an- 
other, had  precluded  themselves  from  recovering  on  the  policy  ? 


138  ABANDONMENT. 


No.  10.  —  Mitchell  v.  Edie.  —  Notes. 


But  in  that  case,  as  the  assured  had  done  everything  for  the  benefit 
of  the  cargo,  the  court  thought  they  were  entitled  to  recover. 

Then  the  only  point  to  be  considered  is,  whether  this  doctrine 
will  be  productive  of  any  uncertainty  ?  If  it  would,  that  would 
be  a  sufficient  reason  in  a  new  case  for  not  adopting  it.  But,  in 
my  opinion,  a  contrary  decision  would  be  productive  of  infinite 
uncertainty.  For  it  would  leave  open  a  very  vague  question, 
viz.,  what  time  the  assured  should  be  allowed  to  abandon.  If 
it  can  extend  to  three  years,  there  is  no  reason  why  it  should  not 
to  a  much  longer  period.  But  no  uncertainty  can  follow  from 
this  determination ;  for  our  opinion  is,  that  when  the  account  of 
a  loss  has  reached  the  assured,  they  must  make  their  election 
whether  they  will  abandon  or  not ;  if  they  do,  they  must  give 
notice  of  their  intention  to  the  underwriters  within  a  reasonable 
time.  If  they  act  otherwise,  they  cannot  be  permitted  at  any 
subsequent  period  to  change  the  partial  into  a  total  loss. 

ENGLISH   NOTES. 

A  cargo  of  corn  was  insured  free  from  particular  average,  and  the  ship, 
having  been  stranded,  was  exposed  to  sea  water  for  a  month.  Part  was 
kiln-dried  and  reshipped.  Notice  of  the  facts  reached  the  owner  of 
cargo  on  the  2d  February,  but  notice  of  abandonment  was  not  given 
until  the  28th.  Held,  too  late.  Anderson  v.  Royal  Ex.  Ass.  Co. 
(K.  B.  1805),  7  Fast.  38  ;  8  P.   P.  589. 

Cargo  of  oil  insured  for  a  voyage.  Port  of  arrival  blockaded  and 
blockade  notified  on  the  6th  September.  Notice  of  abandonment  given 
on  14th  October.  Held,  that  although  by  reason  of  the  blockade  the 
insured  might  have  abandoned  and  so  have  recovered  as  upon  a  total 
loss,  he  was  too  late  in  doing  so,  and  could  only  recover  as  for  a  partial 
loss.     Barker  v.  Blokes  (K.  B.  1808),  9  East,  283  ;  9  P.  P.  558. 

Insurance  on  cargo  of  flour  from  a  port  in  the  United  States  to 
Limerick.  Ship  detained  at  Philadelphia  by  American  embargo,  and 
insured  informed  of  this  on  the  11th  of  February,  1808.  Notice  of 
abandonment  given  on  11th  June  following,  held  too  late.  Kelly  v. 
Walton  (K.  B.  at  nisi  prius,  1808),  2  Camp.  155. 

Delay  in  giving  notice  of  abandonment  by  the  insured  on  goods. 
The  ship's  papers  having  been  taken  away  by  order  of  the  Swedish 
Government  from  the  7th  December  to  17th  January,  held  fatal  to  a 
claim  for  constructive  total  loss;  although  this  did  not  preclude  a  claim 
for  actual  total  loss  by  reason  of  the  goods  having  been  afterwards  seized 
and  never  restored.  Mellish  v.  Andrews,  K.  B.  1812;  15  East,  13 
(s.  c.  under  No.  6),  p.  65,  supra. 


SECT.  IV.  —  CRITERION    OF   TIME.  139 

No.  10.  -  Mitchell  v.  Edie.  —  Notes. 


An  assured  is  entitled  to  a  reasonable  time  for  acquiring  a  full  knowl- 
edge of  the  state  of  a  damaged  cargo  before  making  bis  election  to 
abandon.  And  therefore,  where  a  cargo  of  damaged  sugar  came  into 
port  on  20th  December  and  began  to  be  unshipped  and  examined  on 
21st  December,  but  the  assured  did  not  receive  the  complete  report  of 
the  survey  until  the  7th  January,  it  was  held  that  an  abandonment 
made  on  the  7th  January  was  made  within  a  reasonable  time.  Gernon 
v.  Royal  Ex.  Ass.  (Ex.  1815),  6  Taunt.  383. 

In  the  case  of  Hunt  v.  Royal  Ex.  Ass.  Co.  (1816).  cited  under  Nos. 
2,  3,  and  4,  p.  33,  supra,  it  was  held  that,  allowing  four  days  after 
the  final  survey  for  communication  between  Waterford  and  London,  a 
delay  of  five  days  further  in  giving  notice  of  abandonment  would  have 
been  sufficient  to  bar  the  claim. 

Insurance  on  ship  damaged  by  peril  of  the  sea.  Final  survey  made 
at  Kinsale,  on  14th  December,  when  it  was  ascertained  that  the  cost 
of  repairs  would  exceed  the  value  of  the  ship.  Notice  of  abandon- 
ment given  on  the  following  6th  of  January.  Tbe  communication 
between  London  and  Kinsale  being  four  or  five  days,  this  was  held  too 
late.     Aldridge  v.  Bell  (K.  B.  at  nisiprius,  1816),  1  Stark.  406. 

The  insured  ship  having  started  from  Calcutta  and  returned  there 
shattered  by  a  storm,  the  captain  gave  notice  of  abandonment  to  Lloyd's 
agents  there;  and,  tbe  ship  having  been  surveyed  and  reported  unre- 
pairable, he  sells  her.  The  captain  arrived  in  London  the  25th  of 
April ;  tbe  ship's  papers,  on  the  3d  July.  On  the  5th  of  July  parol 
notice  of  abandonment  was  given  on  the  part  of  the  owners  to  tbe 
underwriters.  After  verdict  for  the  plaintiff,  who  claimed  as  for  a  total 
loss:  held  that  the  notice  of  abandonment  was  sufficient,  and  the  sab- 
having  been  justifiable,  the  insurers  were  bound  by  it.  Bead  v.  Bonham 
(C.  P.  1821);  3  Brod.  &  Bing.  147. 

Insurance  of  cargo  of  wine  for  a  voyage.  The  ship  was  wrecked,  part 
of  the  cargo  lost,  and  a  large  part  of  tbe  rest  greatly  damaged,  so  that 
it  was  questionable  whether  it  was  worthwhile  to  pursue  the  adventure. 
Tbe  owner  gave  notice  of  abandonment,  and  called  a  meeting  of  the 
underwriters.  Some  of  them  attended,  and  with  their  sanction,  tin 
owners,  for  tbe  benefit  of  all  parties,  advertised  tbe  wines  to  be  soli  I. 
Two  months  later,  others  of  the  underwriters,  including  the  defendant. 
intervened  to  countermand  tbe  sale.  Held,  that  the  defendant  bad.  In- 
lying by,  acquiesced  in  the  notice  of  abandonment.  Hudson  v.  Har- 
rison (C.  P.  1821);  3  Brod.  &  Bing.  97.  The  reporters  head-not.-  states 
the  general  proposition  that  "an  insurer  who  rejects  an  abandonment 
must  do  so  within  a  reasonable  time."  But  this,  if  it  implies  that 
mere  silence  is  a  presumption  of  acceptance,  is  going  too  far.  See 
Provincial  Ins.   Co.  of  Canada  r.  Leduc,  post. 


140  ABANDONMENT. 


No.  10.  —  Mitchell  v.  Edie.  —  Notes. 


Where  a  ship  is  driven  ashore  so  that  the  cargo  is  imperilled,  and  it 
is  ultimately  ascertained  that  it  is  impracticable  to  carry  it  to  its  desti- 
nation, the  point  of  time  when  the  loss  occurs  is  not  necessarily  that 
when  the  peril  was  encountered,  but  may,  in  the  interest  of  the  assured, 
be  assigned  as  the  time  when  the  constructive  total  loss  is  so  ascer- 
tained. So  held,  where  the  question  arose  on  a  special  term  of  the  con- 
tract that  no  action  should  be  commenced  but  within  twelve  months 
after  any  loss  or  damage  should  occur,  and  the  action  was  commenced 
within  twelve  months  from  the  latter  but  not  from  the  former  event. 
Browning  v.  Prov.  Ins.  Co.  of  Canada  (1873),  L.  R.,  5  P.  C.  263. 

If  notice  of  abandonment  is  given  by  the  assured  to  the  insurers,  and 
they  say  and  do  nothing,  the  proper  conclusion  is  that  they  do  not  accept 
the  abandonment.  But  if  they,  by  their  agent,  after  notice  of  abandon- 
ment, take  possession  of  the  ship,  do  repairs  upon  it,  and  keep  possession 
of  it  for  a  considerable  time  without  repudiating  the  notice  or  informing 
the  assured  that  they  have  taken  and  hold  possession  in  a  character 
other  than  that  of  owners,  then  the  inference  arises  that  they  have  ac- 
cepted the  abandonment.  Provincial  Insurance  Co.  of  Canada  v. 
Leduc,  Jud.  Com.  of  P.  C.  (appeal  from  Upper  Canada)  (1874),  L.  P.,  0 
P.  C.  App.  224  ;  43  L.  J.  P.  C.  49. 

AMERICAN   NOTES. 

Reasonable  notice  of  intention  to  abandon  must  be  given  to  the  insurers 
after  receipt  of  information  justifying  an  abandonment ;  if  not,  so  given,  the 
right  to  abandon  is  forfeited.  Teasdale  v.  Charleston  Ins.  Co.,  2  Brevard 
(So.  Car.),  190;  3  Am.  Dec.  705;  Chesapeake  Ins.  Co.  v.  Stark,  6  Crunch  (U.  S. 
Sup.  Ct.),  268;  Fuller  v.  McCall,  1  Yeates  (Penn.).  404;  1  Am.  Dec.  312; 
Savage  v.  Pleasants,  5  Binney  (Penn.),  403 ;  6  Am.  Dec.  424  ;  Cohen  v.  Char- 
leston F.  §•  M.  Ins.  Co.,  Dudley  Law  Pvep.  (So.  Car.)  147  ;  31  Am.  Dec.  540. 
But  in  the  last  case  it  was  held  that  when  the  vessel  had  arrived  at  a  foreign 
port  in  a  condition  justifying  abandonment,  prior  notice  of  that  condition 
was  not  necessary. 

Offer  to  abandon,  made  as  soon  as  the  preliminary  proof  of  loss  is  ob- 
tained, is  in  time.  Gardner  v.  Columbian  Ins.  Co.,  2  Cranch  Circ.  Ct.  (U.  S), 
550.  So,  on  learning  of  condemnation,  although  the  insured  did  not  abandon 
on  learning  of  capture.  Dorr  v.  Union  Ins.  Co..  8  Mass.  494;  Earl  v.  Shan-. 
1  Johnson's  Cases  (X.  Y..),  oil. 

Delay  is  immaterial  unless  it  has  prejudiced  the  insurers.  Young  v. 
Union  Ins.  Co.,  24  Fed.  Rep.  279  (U.  S.  Dist.  Ct.).  But  this  is  denied  in 
Taberv.  China  Ins.  Co.,  131  Mass.  239.  (by  Gray.  Ch.  J.),  citing  Mellon  v. 
Louisiana  Ins.  Co.,  5  Martin  x.  s.  (Louisiana),  503. 


SECT.  V.  —  EFFECT   AS   TRANSFER.  141 

No.  11.  —  Case  v.  Davidson.  —  Rule. 

Section  V.  —  Effect  of  Abandonment  in  transferring  Rights. 

No.  11. —CASE    v.   DAVIDSON. 

DAVIDSON   v.   CASE    (in    error). 

(k.  b.  1816,  and  Ex.  Oh.  1820 ) 

RULE. 

Abandonment  of  the  ship  transfers  to  the  underwriters 
the  accruing  freight :  and  his  title  to  that  freight  is  good 
although  freight  has  been  insured  by  a  separate  policy, 
and  is  abandoned  to  the  underwriters  on  freight. 

So  held  by  judgment  of  the  Court  of  King's  Bench 
(Ellenborough,  C.  J.,  Abbott,  J.,  and  Holroyd,  J.,  diss. 
Bayley,  J.)  ;  and  judgment  affirmed  (unanimously)  in  the 
Exchequer  Chamber. 

Case  v.   Davidson. 
Davidson  v.   Case. 

5  M.  &  S.  79. 

Assumpsit  for  money  had  and  received,  and  the  money  counts. 
Plea  general  issue.  On  the  trial  before  Lord  Ellenborough,  C.  J.,  at 
Guildhall  in  Trinity  Term,  1815,  there  was  a  verdict  for  the 
plaintiff  for  £71  12s.  Wd.  damages,  subject  to  the  opinion  of  the 
court  upon  the  following  case :  — 

Messrs.  Brotherston  and  Begg  were  owners  of  the  vessel  called 
the  Fanny,  which  was  a  general  seeking  ship,  and  sailed  on  a 
voyage  from  Bio  de  Janeiro  to  Liverpool  with  a  cargo  of  goods  on 
freight,  the  property  of  different  persons.  On  the  27th  January, 
1814,  Messrs.  Brotherston  and  Begg  insured  the  vessel  on  the  said 
voyage,  valued  at  £7000  ;  and  on  the  22d  April  following  they 
insured  the  freight  of  the  said,  voyage  by  other  policies  and  with 
other  underwriters,  and  valued  the  same  at  £4000.  The  vessel 
with  the  cargo  was  captured  in  the  course  of  the  voyage  by  an 
American  privateer ;  and  thereupon  Messrs.  Brotherston  and  Begg 
gave  notice  of  abandonment  at  the  same  time  to  the  respective 
underwriters  on  ship  and  freight,  who  severally  accepted  the  same. 
Afterwards  the  vessel  was  recaptured  by    one  of   his   Majesty's 


142  ABANDONMENT. 


No.  11.  —  Case  v.  Davidson. 


ships  of  war,  was  brought  to  London,  and  was  by  decree  of  the 
High  Court  of  Admiralty  restored  to  the  owners  with  the  cargo, 
on  payment  of  salvage  and  expenses.  The  vessel  arrived  at 
Liverpool  and  delivered  her  cargo  and  earned  the  freight.  It  was 
agreed  between  the  shipowners  and  the  underwriters  on  ship  (but 
not  by  the  underwriters  on  freight),  that  the  defendants  should 
sell  the  ship  and  receive  the  proceeds  thereof,  and  should  also 
receive  the  freight  of  the  cargo  for  the  use  and  benefit  of  all 
persons  respectively  who  should  legally  be  entitled  to  it.  The 
underwriters  on  ship  and  freight  severally  paid  or  satisfied  the 
shipowners  for  a  total  loss.  The  underwriters  on  ship  paid 
the  loss  on  ship  before  the  underwriters  on  freight  paid  the  loss 
on  freight,  The  defendants  received  and  paid  to  the  underwriters 
on  ship  the  amount  produced  by  the  sale  of  the  ship,  which  was 
about  £33  per  cent,  on  their  subscriptions.  The  defendants  also 
received  the  freight,  which  they  held  under  the  terms  of  the  agree- 
ment, and  which  is  £35  16s.  5d.  per  cent,  clear  on  the  sum  insured 
on  the  ship.  The  underwriters  on  ship  and  also  the  underwriters 
on  freight  severally  claimed  from  the  defendants  the  freight  thus 
received.  The  plaintiff'  is  an  underwriter  on  ship  to  the  amount 
of  £200,  and  claims  to  recover  a  proportion  of  the  money  received 
by  the  defendants  for  freight.  The  question  for  the  opinion  of 
the  court  is,  whether  the  plaintiff  is  entitled. to  recover.  If  he  is 
entitled,  the  verdict  to  stand,  otherwise  a  nonsuit  to  be  entered. 

This  case  was  argued  partly  in  last  term,  and  partly  on  this  day 
(May  7),  by  Richardson  for  the  plaintiff,  and  Littledale  for  the  de- 
fendants. For  the  plaintiff  two  points  were  made,  first,  that  the 
abandonment  of  ship  conveyed  to  the  underwriter  on  ship  the 
ship's  future  earnings;  secondly,  that  the  underwriter's  title  to 
the  earnings  was  not  affected  by  an  abandonment  to  the  under- 
writer on  freight.  In  support  of  these  propositions  were  cited  the 
eases  of  Thompson  v.  Koioeroft,  4  East,  34  ;  Leatham  v.  Terr//,  3  Bos. 

6  Pull.  479  ;  M'Carthy  v.  Abel,  5  East,  388;   Sharpe  v.  Gladstones, 

7  East,  24.  And  Ghinnery  v.  Blackbume,  1  H.  Bl.  117,  in  not.  ; 
Splidt  v.  Bowles,  10  East,  279  ;  Morrison  v.  Parsons,  2  Taunt,  407, 
were  referred  to  arguendo,  as  showing,  that  by  an  assignment  of 
the  ship,  the  freight  passes  to  the  assignee,  and  payment  of  it  to 
him  will  be  good  ;  though  if  the  ship  be  chartered  the  assignee 
cannot,  by  reason  of  a  technical  rule  of  law,  maintain  an  action 
for  the  freight  in  his  own  name. 


SECT.  V.  —  EFFECT    AS    TRANSFER.  143 

No.  11.  —  Case  v.  Davidson. 

For  the  defendants  it  was  urged,  that  as  by  the  law  of  England 
freight  might  be  made  a  distinct  subject  of  insurance  from  ship, 
the  law  would  so  mould  these  contracts,  where  they  concurred,  as 
bo  preserve  the  rights  of  the  respective  parties  distinct,  and  apply 
to  each  what  properly  belonged  to  it.  Wherefore  an  underwriter 
on  ship  who  insures  but  the  hull,  materials,  body,  tackle,  and 
apparel  of  the  ship,  shall  not,  by  an  abandonment,  be  entitled  to 
the  earnings  ;  for  this  would  be  to  confound  the  two  species  of 
abandonment,  and  would  render  an  abandonment  of  freight  of  no 
avail.  It  is  true,  indeed,  that  the  beneficial  interest  in  the  freight 
passes  by  assignment  of  the  ship  :  the  reason  of  which  is,  because 
upon  the  purchase  and  sale  of  a  ship,  both  parties  intend  that 
not  only  the  body  of  the  ship  but  all  its  incidents  should  pass,  and 
agree  upon  a  price  accordingly ;  whereas  a  contrary  intention  seems 
necessarily  to  arise  where  there  is  a  separate  abandonment  of  ship 
and  freight.  Abandonment,  therefore,  differs  from  a  transfer  of 
the  ship  upon  a  sale,  and  extends  no  farther  than  to  the  thing- 
insured. 

Lord  Ellexborough,  C.  J.  Although  this  question  now  comes 
distinctly  in  judgment  before  us  for  the  first  time,  yet  it  has,  I 
own,  been  long  considered,  in  my  mind,  as  settled,  that  freight 
follows,  as  an  incident,  the  property  in  the  ship:  and  therefore,  as 
between  the  respective  underwriters  on  ship  and  freight,  an 
abandonment  of  the  ship  carries  the  freight  along  with  it.  This 
subject  was  much  under  discussion  at  the  time  of  the  Russian 
embargo,  when  the  rights  of  the  respective  sets  of  underwriters 
were  considered.  I  believe  it  was  at  that  time  said  that  an  aban- 
donment to  the  underwriters  of  ship,  like  the  traditio  rei,  divested 
the  owner  of  all  his  rights  in  favour  of  the  party  to  whom  he 
abandoned.  The  underwriter,  indeed,  does  not  become  privy,  by 
virtue  of  such  abandonment,  to  any  existing  charter-party,  nor 
perhaps  to  any  contract  of  affreightment  before  made  with  the 
owner;  but  I  think  that  by  the  abandonment,  he  acquires  pos- 
session of  the  thing  from  the  use  of  which  freight  is  to  be  earned. 
It  is  true,  that  the  shipowner  may  have  entered  into  contracts  for 
the  insurance  of  freight,  and  that  by  abandonment  of  ship  the 
underwriters  on  freight  will  be  deprived  of  some  rights  to  which 
they  would  perhaps  otherwise  be  entitled;  but  this  will  necessarily 
happen,  if  the  underwriter  on  ship  is  entitled  to  look,  without 
reference  to  the  contracts  of  other  persons,  to  his  own  contract, 


144  ABANDONMENT. 


No.  11.  —  Case  v.  Davidson. 


and  to  those  consequences  which  result  to  him  from  abandonment. 
An  abandonment  to  the  underwriter  on  ship  transfers  to  him  not 
merely  the  hull,  but  the  use  of  the  ship,  and  the  advantages  result- 
ing from  the  completion  of  the  voyage.  If,  upon  the  completion 
of  the  voyage,  the  abandonee  may  withhold  the  goods  until  the 
freight  is  paid,  he  must  have  acquired  an  indefeasible  title  to  it. 
I  consider  his  title  as  derived  out  of  the  use  of  the  ship.  It  is 
true,  that  by  the  usage  of  this  country  the  shipowner  may  insure 
his  freight,  but  that  is  not  to  interfere  with  the  insurance  on  ship  ; 
the  underwriter  on  ship  is  to  have  his  rights  entire,  which  are  not 
to  be  affected  by  other  contracts  that  the  shipowner  may  think 
proper  to  engage  in;  and,  after  abandonment,  the  underwriter  on 
ship  is  the  person  to  be  considered  in  possession.  In  the  present 
case,  the  voyage  has  been  completed,  freight  has  been  earned,  and 
has  been  received  by  the  defendants,  for  the  use  of  such  persons 
as  are  entitled;  and  the  question  is,  who  those  persons  are; 
to  which  I  answer,  the  person  whose  ship  earned  the  freight, 
and  that  is  the  abandonee.  This  subject  has  been,  on  several  oc< 
sions,  in  the  mind  of  the  court,  but  more  particularly  in  Sharpe  v. 
Gladstones,  and  Morrison  v.  Parsons  ;  and  what  was  said  in  the 
latter  case  by  Lawrence,  J.,  viz.,  that  the  right  to  freight  sub- 
sequently accruing  must  belong  to  the  assignee  of  the  ship,  as 
incident  thereto,  was  not  new  doctrine  at  that  time,  but  had  been 
intimated  before  by  that  learned  judge,  as  his  opinion;  indeed, 
there  seems  to  have  been  a  concurrence  of  opinion  in  Westminster 
Hall  upon  that  point.  The  underwriter  on  freight  will  certainly, 
by  this  doctrine,  lose  the  specific  thing  abandoned  to  him,  except 
where  the  assured  is  entitled  to  the  freight .  but  abandonment  of 
the  freight  cannot  break  in  upon  the  rights  of  those  who  are 
entitled  to  the  ship.  And  I  own  it  seems  to  me,  that  it  cannot 
make  a  difference,  whether  the  underwriter  on  ship  has  or  has 
not  notice  of  the  insurance  on  freight;  for  I  rest  on  this  simple 
ground,  that  the  abandonee  of  ship  has  all  the  rights  of  the 
shipowner  cast  upon  him,  by  operation  of  that  emphatic  word 
in  the  law-merchant,  "abandonment;"  and  being  so  entitled, 
has  a  right,  if  he  uses  the  ship  for  completing  her  voyage,  to 
her  earnings,  as  against  all  the  world.  Who  are  the  persons 
liable  to  pay  the  wages,  I  do  not  think  is  a  question  here ; 
very  likely  the  sailors  might  libel  the  ship,  and  the  abandonee 
might  be  liable. 


SECT.  V.  —  EFFECT   AS   TRANSFER.  145 

No.  11.  — Case  v.  Davidson. 

Bayley,  J.  I  think  this  is  a  question  of  considerable  difficulty, 
and  it  has  made  a  different  impression  on  my  mind  from  that  of 
my  Lord,  and  I  believe  the  rest  of  the  court.  We  have  considered 
the  subject  a  great  deal  before  we  arrived  at  this  stage  of  the  case, 
and  seeing  that  we  are  not  likely  to  come  to  an  unanimous  agree- 
ment upon  it,  it  is  better  that  we  should  declare  our  opinions  with- 
out farther  delay.  This  is  an  action  by  the  underwriter  on  ship 
against  a  person  who  has  received  and  holds  the  freight  for  the 
use  of  the  party  entitled  to  it.  At  one  period  of  the  adventure, 
there  was  a  capture,  and  there  was  a  contemporaneous  abandon- 
ment to  the  respective  underwriters  of  ship  and  freight.  The  ship 
was  afterwards  recaptured,  and  completed  her  voyage,  and  ulti- 
mately earned  freight ;  and  the  question  is,  if  the  underwriter  on 
ship  is  entitled  to  have  ship  and  freight  or  only  the  ship :  and  the 
underwriter  on  freight  to  have  the  freight.  Now  the  impression 
of  my  mind  is,  with  deference  to  my  Lord,  that  an  abandon- 
ment of  ship,  under  such  circumstances,  from  the  nature  of  the 
subject-matter,  implies  a  virtual  exception  of  the  freight.  Where 
ship  and  freight  are  comprehended,  as  is  most  usual,  in  one 
insurance,  they  are  insured  as  one  entire  subject ;  but  where  the 
insurance  is  separate,  they  ought  to  be  considered,  to  the  termi- 
nation of  the  adventure,  as  separate  subjects.  Freight  is  com- 
pounded of  several  considerations  ;  it  includes  the  wear  and  tear  of 
the  ship,  the  provisions  and  wages  of  the  crew,  and  a  reasonable 
return  of  profit  to  the  owner  for  the  employment  of  his  capital. 
The  underwriter  on  ship  understands  that  he  insures  only  the 
body,  tackle,  and  apparel  of  the  ship.  I  agree,  that  the  ship- 
owner, in  ascertaining  the  value  to  be  insured,  includes  in  his 
calculation  not  only  the  value  of  the  ship,  but  also  the  expenses 
of  the  outfit ;  and  this  creates  some  difficulty,  because  when  a  loss 
happens,  it  is  computed,  1  believe,  upon  the  value  at  the  time  the 
ship  set  sail,  and  not  at  the  time  of  the  loss  ;  and  as  this  value  is 
constantly  diminishing  as  the  voyage  proceeds,  it  may  be  said  that 
the  freight  is  no  more  than  an  equivalent  for  this  decrease  in 
value.  .  Nevertheless,  it  seems  to  me,  that  the  underwriter  on  ship 
has  no  right  to  expect  from  an  abandonment  more  than  he  has 
insured,  that  is,  the  hull,  tackle,  and  apparel  of  the  ship,  in  the 
plight  in  which  she  is  at  the  time  of  abandonment.  If  the  ship 
completes  her  voyage,  it  is  so  much  saved  to  him.  I  am  not  sorry 
that  the  opinion  of  the  court  is  against  me,  for  I  think  the  con- 
vol.  i.  — 10 


14f>  ABANDONMENT. 


No.  11.  —  Case  v.  Davidson. 


sequence  will  be,  that  in  future  there  never  will  be  an  abandon- 
ment of  ship.  If,  by  abandoning  the  ship,  the  assured  must  be 
deemed  to  have  abandoned  the  freight,  there  cannot  be  any  aban- 
donment to  the  underwriter  on  freight ;  and  the  assured  may  be 
liable  to  the  underwriter  on  freight  for  the  freight.  The  mariners 
value  on  him  for  wages,  and  he  is  obliged  to  pay  them.  It  is  true, 
that  they  may  proceed  against  the  ship  in  the  Admiralty  Court, 
but  they  are  not  bound  to  go  thither,  and  may  sue  the  owner;  and 
the  master  of  the  ship  cannot  go  to  the  Admiralty  Court.  That 
seems  to  me  to  place  the  shipowner  in  such  a  predicament  upon 
abandonment,  that  it  will  not  allow  him  for  the  future  to  make 
abandonment  of  ship.  I  do  not  quote  the  cases  of  Sharpe  v.  Glad- 
stones, and  Barclay  v.  Stirling,  because  they  do  not  involve  any 
question  between  the  two  sets  of  underwriters.  But  I  ask,  upon 
what  principle  is  the  underwriter  on  ship  to  be  entitled  to  the 
freight  ?  Suppose  the  ship  to  have  performed  nine-tenths  of  her 
voyage  at  the  time  of  abandonment,  the  underwriter,  if  entitled 
to  the  freight,  will  receive  the  whole  benefit  and  earnings  of  the 
voyage,  although  he  is  only  at  a  few  days  expense  for  provisions. 
This  would  be  the  consequence  of  its  being  understood,  that  by 
abandonment  of  ship,  it  is  the  intention  of  the  assured  to  abandon 
all  the  rights  belonging  to  her.  If  this  is  to  be  taken  as  the 
intention,  I  agree  that  the  underwriter  is  entitled  to  the  growing 
freight ;  but  it  seems  to  me,  from  the  nature  of  an  abandonment, 
and  from  the  constant  practice  which  has  prevailed,  of  insuring 
freight  separately,  that  it  must  have  been  the  understanding  of 
these  parties,  that  an  abandonment  of  the  ship  should  not  carry 
with  it  the  freight.  If  this  be  not  so,  it  is  wonderful  that  the 
question  has  never  been  raised,  so  as  to  settle  the  right  of  the 
abandonee  of  ship  to  the  freight.  For  these  reasons,  I  think 
the  plaintiff  is  not  entitled. 

Abbott,  J.  I  am  of  opinion  that  the  plaintiff  is  entitled  to 
recover.  The  question  comes  now  for  the  first  time  to  be  decided, 
but  it  is  not  new  to  the  court ;  an  opinion  has  been  expressed  upon 
it  in  several  cases.  Nor  is  it  by  any  means  a  new  point  to  the 
minds  of  professional  men,  who  have  been  at  all  conversant  with 
the  law-merchant.  Now  this  is  a  principle  clearly  established, 
that  if  the  ship  be  sold,  the  vendee  is  entitled  to  the  freight  as  an 
incident  to  the  ship.  And  on  that  principle  I  found  my  judgment 
in  this  ease,  being  of  opinion  that  an  abandonment  is  equivalent  to 


SECT.  V.  —  EFFECT    As   TRANSFER.  147 

No.  11.  —  Case  v.  Davidson. 

a  sale  of  the  ship.  And  considering  freight  to  be  an  incident,  I 
cannot  engraft  upon  the  effect  of  an  abandonment  any  exception, 
hut  take  it  to  be  a  complete  transfer  of  all  the  rights  which  are 
consequent  upon  a  sale  of  the  ship-,  it  was  argued  by  Mr.  Little- 
dale,  that  since  a  practice  has  prevailed  in  this  country  of  insuring 
ship  and  freight  separately,  the  underwriter  on  ship  must  contem- 
plate that  inasmuch  as  freight  may  be  the  subject  of  a  separate 
insurance,  it  may  also  be  separately  abandoned.  But  this  argu- 
ment is  built  upon  an  assumption  that  an  abandonment  of  freight 
conveys  to  the  abandonee  a  right  to  the  freight  in  preference  to 
the  right  of  the  abandonee  of  ship;  which  is  assuming  the  whole 
question.  As  well  might  it  be  argued,  that  as  the  underwriter  on 
freight  is  aware  that  the  ship  may  be  separately  insured,  he  must 
therefore  be  taken  to  know  that  an  abandonment  of  the  ship  will 
convey  all  the  incidents  belonging  to  it  to  the  abandonee.  The 
practice,  therefore,  of  insuring  ship  and  freight  separately  seems  t<> 
me  to  afford  no  argument  whatever  either  way  to  show  what  the 
law  is  or  ought  to  be.  If  it  had  been  the  practice,  that  upon  sep- 
arate insurances  the  abandonee  of  freight  should  take  the  freight 
notwithstanding  an  abandonment  of  the  ship,  such  a  practice  might 
have  afforded  a  construction  ;  but  we  do  not  find  that  there  has 
been  any  such  practice.  It  was  further  contended  by  Mr.  Little- 
<lale,  that  supposing  this  freight  had  not  been  insured,  the  ship- 
owner and  not  the  underwriter  on  ship  would  have  been  entitled  to  it 
.after  abandonment  of  the  ship ;  but  I  did  not  observe  that  he  cited 
any  authority  for  this  position ;  and  the  practice,  I  believe,  has 
been  the  other  way.  I  have  never  heard  of  an  instance  in  which  the 
assured,  after  abandoning  the  ship  to  the  underwriter,  has  stepped 
in  and  claimed  the  freight  as  against  the  underwriter;  on  the 
contrary,  the  practice  has  been  uncontested  that  the  abandonee 
lias  received  the  freight.  It  may  perhaps  be  a  question,  as  between 
the  underwriter  on  freight  and  the  shipowner  after  abandonment, 
to  whom  the  freight  belongs  ;  but  this  question  it  is  unnecessary 
at  present  to  touch.  It  has  been  observed  that  nothing  is  to  be 
found  in  the  foreign  writers  in  favour  of  this  claim  of  the  under- 
writer on  ship.  Foreign  writers,  I  am  aware,  are  not  to  be  stated 
as  authorities  in  this  court;  but  I  find  one  learned  foreign  writer, 
in  commenting  on  the  loth  article,  tit.  Insurance,  Valin,  Liv. 
iii.  tit,  6.  Dcs  Assurances,  art.  15,  which  prohibits  the  insur- 
ance of  freight,  is  of  opinion  that  freight  is  an  incident  to  the  ship 


148  ABANDONMENT. 


No.  11.  —  Case  v.  Davidson. 


and  must  from  its  nature  follow  it.  And  he  puts  an  instance 
of  a  voyage  to  the  West  Indies,  where  it  is  usual  to  stipulate 
for  the  freight  on  putting  the  goods  on  board.  He  then  sup- 
poses that  the  ship  is  lost  in  the  voyage,  and  that  the  goods  are 
saved  in  part  or  in  whole  ;  and  concludes  that  the  shipowner,  in 
making  abandonment,  is  bound  to  answer  to  the  •underwriter 
for  so  much  of  the  freight  as  is  received.  A  stronger  mode  of 
illustrating  his  opinion  that  the  freight  accompanies  the  ship  can- 
not be  put.  Although  I  do  not  quote  this  as  an  authority,  yet  it 
is  satisfactory  to  know  that  my  opinion  concurs  not  only  with  that 
of  other  Judges,  but  also  with  that  of  foreign  writers  upon  this 
subject. 

Holroyd,  J.  I  am  also  of  opinion,  that  the  plaintiff  is  entitled 
to  recover,  and  I  would  adopt  the  same  line  of  argument  that  has 
been  taken  by  my  Lord  and  my  Brother  Abbott.  It  appears  to 
me  that  when  the  shipowner  abandons  his  ship  to  the  underwriter, 
the  latter  stands  in  all  respects  as  to  future  benefit  in  place  of 
the  owner.  The  underwriter  pays  the  whole  loss,  and  in  con- 
sequence becomes  quasi  owner  instead  of  the  former  owner.  It 
follows  as  a  consequence  of  abandoning  the  ship  that  the  owner 
divests  himself  of  his  right  to  freight,  which  is  incident  to  the 
ship,  and  the  same  becomes  vested  in  the  abandonee,  to  whom  it 
is  competent  to  possess  himself  of  the  ship,  and  if  she  should  be 
unfreighted  to  endeavour  to  obtain  for  her  a  freight.  And  if  the 
ship  be  freighted,  yet,  as  it  seems  to  me,  the  underwriter  is  not 
bound  to  complete  the  voyage,  because  the  rights  of  the  owners 
of  the  goods  laden  on  board  are  personal,  lying  in  contract  with  the 
shipowner,  and  not  running  with  the  ship ;  and  being  in  respect  of 
a  personal  chattel,  an  action  lies  not  against  the  underwriter,  but 
against  the  owner  alone.  Put  the  case  of  a  voyage  from  London  to 
Madeira,  or  perhaps  the  West  Indies  ;  an  insurance  is  effected  from 
London  to  the  West  Indies,  with  leave  to  touch  at  Madeira ;  a 
loss  happens  before  the  ship  reaches  Madeira,  and  the  assured 
abandons  ;  is  not  the  underwriter  entitled  to  the  freight  if  he 
carries  on  the  goods  to  the  West  Indies  ?  I  apprehend  he  is  ;  for 
otherwise  it  would  follow  that  he  could  not  possess  himself  of  the 
ship  until  her  return  home.  Upon  these  grounds  it  appears  to  me 
that  the  abandonee  becomes  entitled  immediately  to  all  the  earnings 
of  the  ship  as  a  consequence  of  the  abandonment. 

Judgment  for  the  plaintiff. 


SECT.  V. EFFECT    AS    TRANSFER.  149 

No.  11.  —  Davidson  v.  Case. 

Davidson  v.  Case  (in  error). 

8  Price,  542  (s.  c.  2  Brod.  &  B.  379  ;   5  J.  B.  Moore,  116). 

Error  having  been  brought  from  the  judgment  in  the  King's 
Bench,  the  case  was  argued  in  the  Exchequer  Chamber  by  Little- 
dale  for  the  plaintiff  in  error,  and  by  Scarlett  for  the  defendant  in 
error;  and  in  Michaelmas  Term,  1820,  the  judgment  of  the  court 
unanimously  affirming  the  judgment  of  the  King's  Bench  was  de- 
livered as  follows  (omitting  preliminary  and  unimportant  observa- 
tions), by 

Dallas,  C.  J.  First,  it  is  not  denied  that,  generally  speaking, 
an  assignment  of  ship  includes  freight ;  but  it  is  said  that  it  does 
so,  because  such  is  the  natural  effect  and  consequence  of  such 
assignment  where  there  is  no  agreement  between  the  parties  to 
the  contrary ;  whereas,  in  cases  of  abandonment  under  insur- 
ance, such  agreement  is  to  be  implied  from  the  practice  of 
making  separate  insurances,  which  the  law  of  this  country  — 
different  in  this  respect  from  the  law  of  other  countries  —  per- 
mits ;  and  that  the  law  will  therefore  keep  the  interest  of  the 
parties  separate  and  distinct,  giving  to  the  underwriter  on  ship 
the  ship  abandoned,  and  the  freight  to  the  underwriter  on  freight 
abandoned. 

That  such  a  practice  has  prevailed  is  undoubtedly  true  ;  but 
there  is  a  fallacy  in  confounding  the  fact  of  that  practice  with  the 
legal  effect  of  a  contract  for  insurance.  It  is  the  practice  itself 
that  raises  the  legal  question.  To  make  the  practice  decisive  of 
the  law,  it  would  be  necessary  to  go  further,  and  to  show  a  practice 
of  settling  losses  in  conformity  to  it,  and  that  the  underwriters  on 
ship  have  never  claimed  the  freight,  and  the  underwriters  on 
freight  have  constantly  received  it.  Such  a  practice,  if  of  sufficient 
prevalence  and  notoriety  to  raise  the  presumption  of  general 
knowledge,  would  show  the  understanding  of  parties  with  refer- 
ence to  which  they  must  be  taken  to  deal,  and  would  therefore 
form  the  basis  of  the  contract  betweeen  those  who  were  respec- 
tively privy  to  it.  But  it  was  admitted  in  the  argument  in  the 
court  below,  and  adverted  to  upon  the  Bench,  and  has  again  been 
admitted  in  the  argument  here,  that  there  has  been  no  such  settled 
practice  ;  but  that,  on  the  contrary,  the  question  has  altogether 
hitherto  been  the  subject  of  controversy,  the  underwriters  on  ship 
having,  in  every  instance,  resisted  the  claim  of  the  underwriters 


150  ABANDONMENT. 


No.  11.  —  Davidson  v.  Case. 


on  freight,  asserting  that  the  freight  belonged  to   themselves,  as 
owners  of  the  ship,  on  the  abandonment  being  made. 

It  is  not  pretended  that  there  has  been  any  actual  agreement  to 
the  contrary  in  this  case,  and  it  seems  to  follow  of  course  that  no 
such  agreement  can  be  implied  from  the  mere  practice  of  insuring 
separately,  when  we  find  that  the  practice  stops  with  the  fact  of  so 
insuring,  and  the  effect  of  such  fact  has  constantly  been  matter  of 
dispute.  I  have  dwelt  on  this  the  more,  because  I  observe  that,  in 
the  court  below,  the  argument  was  mainly  pressed  on  the  ground 
that  such  an  agreement  was  to  be  implied,  —  which  I  think  it  can- 
not be,  for  the  reasons  which  I  have  given. 

It  then  becomes  our  business  to  inquire  —  there  being  then  no 
actual  or  implied  agreement  between  the  two  sets  of  insurers  — 
what,  in  point  of  law,  is  the  effect  of  the  contract  into  which  they 
have  respectively  entered  with  the  owners.  I  say  the  two  sets  of 
insurers,  because  it  is  not  necessary  to  consider  the  consequence 
of  a  separate  insurance  and  abandonment  of  freight  between  the 
insurers  on  freight  and  the  assured,  under  all  circumstances  thai 
might  possibly  arise  on  the  contract  directly  made  between  them. 
Confining,  therefore,  the  consideration  in  the  manner  stated,  what 
is  the  legal  operation  of  the  respective  contracts  ?  In  resolving 
this  question  I  put  no  stress  upon  the  fact  that  freight  passes- 
under  a  general  assignment  of  ship ;  because  that  appears  to  me  to- 
be  begging  the  question,  —  the  question  arising  on  a  supposed  dis- 
tinction, existing  in  cases  of  abandonment,  as  being  different  from 
common  transfer  by  the  ordinary  modes.  The  effect  of  it,  correctly 
considered,  is  only  to  remit  the  question  to  the  general  operation 
of  law,  supposing  the  distinction  contended  for  to  fail.  Nor  do  I 
place  reliance  on  the  assignee  of  the  ship  becoming  the  owner  of 
her,  in  a  common  case;  for  there  again  the  question  turns  upon 
the  asserted  distinction.  Neither  do  I  give  weight  to  the  mere 
fact  of  separate  insurances  ;  for  this  also  would  be  to  take  that 
point  for  granted :  and  they  are  not  separate,  but  connected,  if 
made  under  a  general  understanding  that  each  shall  refer  to  and 
be  regulated  by  the  other. 

But  the  case  seems  to  me  to  result  to  this :  —  If,  in  every  other 
case  of  transfer,  the  freight  follows  the  assignment  of  the  ship  ; 
and  if  abandonment  be  but  a  different  term  for  assignment,  and 
the  same  in  effect,  unless  modified  to  a  different  purpose  by  the 
agreement  of  parties ;  and  if  in  this  case,  so  far  from  there  being 


SECT.  V.  —  EFFECT    AS    TRANSFER.  151 

No.  11.  —  Davidsou  v.  Case.  —  Notes. 

any  such  agreement,  either  actual  or  in  fact,  or  to  be  presumed  in 
law,  the  contrary  is  to  be  implied  —  the  case  only  amounting  to 
claim  on  one  side,  and  resistance  to  such  claim  on  the  other  —  the 
reason  fails  for  taking  this  case  out  of  the  general  law  ;  and,  con- 
sequently, the  underwriters  on  ship,  under  the  abandonment  to 
them  of  ship,  are  entitled  to  freight. 

In  so  deciding,  we  shall  not  break  in  upon  the  general  legal 
principle,  by  engrafting  upon  it  an  anomaly  of  doubtful  conven- 
ience ;  nor  will  the  decision  lead  to  any  difficulty  in  future,  as  ship 
and  freight  may  be  made  the  subject  of  one  and  the  same  insur- 
ance ;  or,  if  there  be  any  practicable  objection  to  this,  of  which  I. 
am  not  aware,  the  parties  may  contract,  with  reference  to  the  law 
as  now  finally  settled,  supposing  the  case  to  end  here. 

ENGLISH   NOTES. 

The  above  ruling  case  finally  decided  for  England  a  point  which  had 
been  frequently  raised  and  much  discussed  in  cases  arising  out  of  the 
Russian  embargo  (in  1800).  In  one  of  these  cases  the  decision  had 
turned  upon  a  special  point  which  may  be  here  mentioned.  The  ship- 
owner had  separately  insured  ship  and  freight  and  abandoned  them  to 
the  respective  underwriters,  who  accepted  the  abandonment.  The  em- 
bargo being  taken  off,  the  ship  completed  her  voyage  and  earned  freight. 
It  was  held,  without  deciding  any  question  as  to  the  right  to  abandon, 
that  the  assured  could  not  recover,  as  for  a  total  loss,  on  the  policy  on 
freight,  because,  1st,  the  freight  had  been  in  fact  earned;  2ndly,  if  lost 
to  the  assured  it  was  lost,  not  by  a  peril  insured  against,  but  by  his 
own  voluntary  act  in  abandoning  the  ship.  McCarthy  v.  Abel  (K.  1>. 
1804);  5  East,  388.  This  doubtless  involved  the  question,  what  would 
have  been  the  effect  of  an  abandonment  if  justifiably  made,  and  so  paved 
the  way  for  the  decision  in  the  above  ruling  case. 

A  special  contract  of  insurance  effected  by  a  charterer  of  a  ship,  stipu- 
lated that  the  assured  might  claim  a  total  loss  if  the  ship  should  not  be 
allowed  to  load  a  cargo  at  St.  Petersburgh.  This  event  having  hap- 
pened, the  master  put  in  at  Stockholm  and  earned  freight  on  the  home- 
ward voyage  from  there.  Held,  that  the  underwriters,  paying  the  total 
loss,  might  retain  as  salvage  the  amount  of  the  freight  so  earned. 
Puller  v.  Staniforth  (K.  B.  1809);  11  East,  232.  It  appears  to  have 
been  assumed  in  the  arguments  and  judgment  that  the  homeward  freight 
was  earned  on  account  of  the  assured.  But  in  a  subsequent  case,  under 
a  similar  charter-party,  it  was  decided  that  the  charterers  were  not  en- 
titled to  freight  earned  by  the  master  of  the  ship  upon  goods  shipped 
for  the  homeward  voyage  at  another  port,  on   tin1  top  of  the  original 


152  ABANDONMENT. 


No.  11.  —  Davidson  v.  Case.  —  Notes. 


cargo  (of  lead).  And  in  an  action  on  a  similar  policy  effected  by  the 
charterer  in  regard  to  the  last-mentioned  ship,  judgment  was  given  for 
a  total  loss  without  any  benefit  of  salvage.  Puller  v.  Halliday  (1810), 
11'  East,  494. 

Under  a  policy  on  freight  at  and  from  port  of  loading  at  Jamaica  to 
London  with  leave  to  call  at  intermediate  ports  :  — The  ship  got  on  shore 
off  Cuba,  where  a  large  part  of  the  cargo,  consisting  of  sugar,  was  washed 
away.  On  intelligence  of  this  the  assured  abandoned  the  freight,  and 
on  an  action  for  a  total  loss  an  adjustment  was  made  on  that  footing. 
The  ship  afterwards  arriving  with  part  of  the  original  cargo  and  some 
new  cargo  on  which  freight  was  earned,  it  was  held  that  the  under- 
writers on  freight  were  entitled  by  wajr  of  salvage  to  the  whole  of  the 
freight  actually  earned,  including  the  new  freight  after  deducting  the 
expense  of  obtaining  that  freight.  Barclay  v.  Stirling  (K.  B.  1816); 
5  M.  &  S.  6. 

Ship  and  freight  were  insured  in  separate  policies  for  a  voyage  from 
Liverpool  to  New  York,  thence  to  Quebec,  &e.,  thence  to  port  of  dis- 
charge in  the  United  Kingdom,  and  thereafter  until  moored  in  safety 
at  place  of  destination.  The  ship  was  injured  by  an  iceberg  on  the 
homeward  voyage  and  reached  Liverpool  waterlogged,  so  that  she  could 
not  be  taken  into  the  docks  or  moored,  and  she  was  consequentl}-  left  to 
take  the  ground  just  outside  the  dock.  The  water  having  been  let  out 
of  the  ship  at  low  water,  the  ship  was  ultimately  got  into  the  docks  and 
the  cargo  landed.  The  ship  however  was  in  such  a  condition  as  to  re- 
quire extensive  repairs,  and  the  shipowner  abandoned  to  the  under- 
writers. An  action  was  brought  in  the  Court  of  Session  in  Scotland  by 
the  shipowners  against  the  underwriters  on  ship.  The  pursuer  (plain- 
tiff) in  the  action  claimed  as  for  a  total  loss;  and  the  jury,  under  the 
direction  of  the  Lord  President, —  who  said  this  depended  on  whether 
the  ship  was  worth  repairing,  —  found  for  the  pursuers,  reserving, 
under  the  same  direction,  the  question  as  to  whether  the  shipowner  or 
the  underwriter  was  entitled  to  the  freight.  This  latter  point  was  subse- 
quently argued  before  the  Court  of  Session,  who  decided  that  the  under- 
writer was  entitled  to  the  freight  as  against  the  shipowner.  The  House 
of  Lords  affirmed  this  decision.  Stewart  v.  Greenock  Marine  Ins.  Co. 
(H.  L.  (appeal  from  Scotland),  1848),  2  H.  L.  C,  159.  [It  is  to  be  ob- 
served that  the  decision  of  the  Court  of  Session  (which  had  not  been 
appealed  against)  to  the  effect  that  the  facts  constituted  a  total  loss  was 
inconsistent  with  the  English  authority  of  Cazalet  v.  St.  Barbe  (1786), 
1  T.  R.  187  (p.  128,  ante),  which  apparently  was  not  adverted  to  by 
the  parties  at  the  original  trial.  See  the  case  as  reported  in  the  Scotch 
Reports,  6  Court  of  Session  Cases,  2d  series,  p.  359.  The  Scotch  case, 
therefore,  cannot  be   regarded  as   an   authority  on   this   point:   and    its 


SECT.  V.  —  EFFECT   AS   TEANSFEE.  153 


No.  11.  —  Davidson  v.  Case.  —  Notes. 


only  importance  is  upon  the  question  of  what  becomes  of  the  freight  in 
a  case  where  there  is  a  valid  Abandonment.] 

In  another  case  arising  out  of  the  same  circumstances  as  the  last,  the 
assured  having,  in  consequence  of  the  decision  in  Stewart  v.  Greenock 
Marine  Ins.  Co.,  been  obliged  to  surrender  the  freight  to  the  under- 
writers on  ship,  brought  an  action  against  the  underwriter  on  freight; 
but  the  House  of  Lords,  reversing  the  decree  of  the  Court  of  Session, 
held  that  they  could  not  recover,  because  the  loss  of  freight  (which  had 
been  actually  earned)  arose,  not  from  the  perils  of  the  sea,  but  from 
their  own  voluntary  act  in  abandoning  the  ship  to  the  underwriters  on 
ship,  after  the  freight  had  been  actually  earned  and  received  by  the 
shipowners.  Scottish  Marine  Ins.  Co.  of  Glasgow  v.  Turner  (H.  L. 
1853),  1  Macq.  334.  [It  will  be  observed  that  this  decision  was  sim- 
ilar to  McCarthy  v.  Abel,  p.  151,  ante,  except  that  in  that  case  the 
abandonment  had  taken  place  before  the  freight  was  fully  earned.] 

Where  the  goods  on  board  are  the  shipowner's  own,  so  that  there 
could  not  be,  properly  speaking,  any  contract  of  affreightment,  the 
abandonee  (underwriter  on  ship  stranded  and  abandoned)  cannot  as 
purchaser,  any  more  than  another  purchaser  of  the  ship,  claim  any 
freight  in  respect  of  the  whole  voyage,  or  of  the  part  of  it  performed  at 
the  time  of  abandonment.  But  such  an  abandonee  may  be  entitled, 
upon  an  implied  contract,  to  a  payment  in  the  nature  of  freight,  in  re- 
spect of  the  service  performed  in  carrying  any  cargo  from  the  place  of 
stranding  to  the  ultimate  destination.  Miller  v.  Wood/all  (Q.  B. 
1857),  8  El.  &  Bl.  493;  27  L.  J.,  Q.  B.  120. 

The  judgment  of  the  court  delivered  by  Lord  Campbell  in  the  last- 
mentioned  case  is  interesting,  as  containing  a  clear  statement  by  way 
of  contrast,  of  the  principles  of  English  and  American  law  on  the  point. 
He  says:  "The  abandonees  are  considered  as  purchasers  of  the  ship 
at  the  moment  of  the  casualty  to  which  the  abandonment  refers :  and, 
although  the  contract  of  a  shipowner  does  not  run  with  the  ship, 
it  is  well  settled  that,  as  incident  to  the  ship,  the  right  to  the  whole 
freight,  pending  at  the  time  of  the  sale  and  subsequently  earned,  belongs 
to  the  purchaser  of  the  ship.  The  American  courts,  presuming  that  ship 
and  freight  are  always  separately  insured,  and  taking  into  consideration 
the  respective  rights  and  equities  of  the  different  sets  of  underwriters 
■where  the  loss  is  finally  adjusted  among  all  parties,  assured  and  assurers, 
make  an  apportionment  of  the  freight  earned  partly  before  and  partly 
after  the  casualty  for  which  the  abandonment  on  ship  is  made;  so  that 
the  freight  earned  previous  to  the  casualty  may  go  for  the  benefit  of  the 
underwriters  on  freight  to  whom  there  has  been  an  abandonment,  and 
only  the  freight  earned  after  the  casualty  vests  in  the  abandonee  on 
ship.    (See  the  authorities  collected,  Arnould.  §  404.)     But  (as  in  the 


154  ABANDONMENT. 


No.  11.  —  Davidson  v.  Case.  —  Notes. 


present  case),  in  adjusting  the  rights  of  assured  and  assurer  on  ship,  we 
do  not  look  beyond  those  parties;  and  the  abandonee  of  the  ship,  like 
the  purchaser,  has  a  right  to  the  whole  of  the  freight  pending  at  the 
casualty,  although  he  could  not  claim  freight  paid  or  completely  earned 
in  a  prior  part  of  the  voyage:  Stewart  v.  Greenock  Marine  Ins.  Co., 
•J  11.  L.  Cas.  159,  s.  c.  1  Macq.  8c.  Ap.  328;  the  Scottish  Marine  In- 
surance Co.  of  Glasgow  v.  Turner,  1  Macq.  Sc.  Ap.  334."  Miller  v. 
Wood/all,  at  supra,  8  El.  &  Bl.  503. 

Where,  after  disaster,  the  cargo  is  forwarded  to  the  destination  by 
another  ship  at  less  than  the  freight  of  the  whole  voyage,  so  that  freight 
pro  rata  parte  itineris  is  saved  for  the  part  of  the  voyage  performed  by 
the  original  ship,  such^ro  rata  freight  does  not  (in  England  any  more 
than  in  America)  go  as  salvage  with  the  ship,  but  belongs  to  the  original 
owner,  or  goes  as  salvage  to  the  underwriters  on  freight. —  A  ship  which 
had  been  chartered  to  carry  troops  to  Calcutta,  is  insured  by  a  valued 
policy.  The  ship,  having  been,  while  at  sea.  damaged  by  a  peril  insured 
against,  is  put  into  port,  abandoned  (after  survey)  to  the  underwriters. 
and  the  abandonment  is  accepted.  The  captain  having  chartered  another 
ship  and  forwarded  the  troops  to  Calcutta, the  whole  of  the  original  freight 
is  paid  to  the  original  owner  of  the  ship.  Held,  that  the  captain  was  to 
be  presumed  to  have  acted  as  agenl  for  the  owners  of  the  ship  and  not  for 
the  underwriters,  and  that  the  latter  were  not  entitled  to  any  benefit 
from  the  freight  earned.  Hickie  v.  Rodocanachi  (Ex.  1859),  4  H.  &  N. 
455;  28  L.  J.  Exch.  273. 

Although  the  underwriter  on  ship  acquires,  on  abandonment,  all  the 
rights  of  the  shipowner,  including  claims  of  damages  against  a  colliding 
vessel,  he  has  no  independent  right  of  action;  and  he  does  not,  there- 
fore, acquire  any  right  to  compensation  in  the  nature  of  damages  against 
a  colliding  vessel  belonging  to  the  same  owner.  The  principle  that  the 
insurer,  by  paying  the  indemnity,  comes  into  the  place  of  the  assured  in 
respect  of  any  indemnity  due  to  him  by  reason  of  a  wrong,  does  not  de- 
pend on  abandonment,  and  is  the  same  whether  the  indemnity  between 
the  insurer  and  assured  has  been  settled  on  the  footing  of  a  total  or  of 
a  partial  loss.  Yates  v.  Whyte  (1838),  4  Bing.  N.  C.  272;  Simpson  v. 
Thomson  (H.  L.  from  Scotland.  1877),  3  App.  Cas.  279,  and  per  Lord 
Blackburn,  p.  21)2. 

AMERICAN    NOTES. 

The  American  rule  is  different,  and  is  to  the  effect  that  "the  insured  is 
entitled  to  recover  the  freight  for  the  portion  of  the  voyage  performed," 
Teasdalev.  Charleston  Tns.  Co..  2  Brevard  (So.  Car.),  190;  3  Am.  Dec.  705, 
"  because  upon  abandonment,  the  underwriters,  if  they  receive  any  part  of 
the  goods,  or  their  value,  are  liable  for  the  freight  of  them.  The  goods  are 
always  chargeable  for  their  freight,  and  when  goods  are  abandoned  to  the 


SECT.  V.  —  EFFECT  AS  TRANSFER.  155 

No.  11.  —  Davidson  v.  Case.  —  Notes. 

insurers,  the  insurers  of  course  are  chargeable  out  of  the  goods  for  their 
freight."  The  same  was  held  in  Kennedy  v.  Baltimore  Ins.  Co.,  3  Harris  cS: 
Johnson  (Maryland),  'Mu  ;  6  Am.  Dec.  4!»!t.      The  court  said  :  — 

"  According  to  the  opinion  of  the  court,  tin-  abandonment  of  the  ship  for  a 
total  loss  on  account  of  the  capture  did,  by  operation  of  law,  transfer  all  the 
right  and  interest  of  the  appellant  in  the  ship  to  the  appellees,  on  their 
•accejitance  of  the  abandonment,  and  all  the  benefits  and  advantages  direct  h 
-or  incidentally  accruing  from  the  ship  subsequent  to  the  capture.  The 
abandonment  tor  a  total  loss  has  a  retrospective  relation  to  the  cause  of  the 
.abandonment,  and  in  this  case  to  the  capture  of  the  ship.  At  that  time 
all  the  right  and  interest  of  the  appellant,  the  insured,  in  the  ship  ceased,  and 
the  right  and  interest  of  the  insurers  commenced.  The  assured,  by  his  aban- 
donment, had  made  his  election  to  take  that  which  was  substituted  by  mutual 
consent  as  an  equivalent  for  the  ship,  and  the  insurers,  by  their  acceptance, 
gave  their  assent  to  it.  What  were  the  respective  rights  of  the  assured  and 
insurers,  at  this  time,  as  to  the  freight  of  the  ship?  If  the  freight  is  susceptible 
of  apportionment,  and  in  our  judgment  it  is,  and  may  be  apportioned  in  such 
manner  as  will  do  justice  to  both  parties,  by  giving  to  each  the  usufruct  of  the 
.ship  during  the  time  of  their  respective  ownership,  the  proportion  of  each  in 
this  case  to  be  ascertained  according  to  existing  circumstances.  The  principle 
of  apportionment  in  this  case  and  those  similarly  circumstanced,  is  founded  in 
equity.  The  contingency  which  produced  the  abandonment  cannot  be  attri- 
buted to  either  party,  and  the  result  ought  not  to  be  more  unfavourable  to 
one  than  the  other.  But  if  this  principle  is  rejected  on  the  ground  that  there 
is  no  criterion  by  which  the  apportionment  can  lie  made,  then  the  insurers 
would  not  be  burdened  with  the  loss  against  which  they  insured;  but,  by 
receiving  the  whole  of  the  freight,  might  be  compensated  for  it;  or,  at  any 
rate,  their  loss  would  be  very  much  diminished  at  the  expense  of  the  assured. 
The  court  are  of  opinion  that  the  appellant  is  entitled  to  all  the  emoluments 
or  earnings  of  the  ship  anterior  to  the  capture,  to  be  adjusted  by  a  jury  on 
such  evidence  as  is  legally  admissible  before  them." 

In  Cincinnati  Inn.  Co.  v.  Duffield,  '!  Ohio  State,  200,  it  was  held  that  (in 
regard  to  the  wreck)  abandonment  "operates  as  a  transfer  to  the  underwriters 
of  the  property  insured  only  to  the  extent  of  the  indemnity  contemplated  by 
the  policy." 

The  American  rule  is  also  declared  in  Whitney  v.  N.  Y.  Firemen  Tns.  <  '<>  , 
18  Johnson  (X.  Y.).  208;  Davy  v.  Ilallelt,  3  Caines  (X.  Y.),  16;  Hubbell  v. 
Great  Western  Ins.  Co.,  74  Xew  York.  260.  The  last  case,  decided  in  1878, 
explicitly  points  out  the  disagreement  between  the  English  and  the  American 
rule. 


156  ABATEMENT. 


No.  1.  —  Dockwray  v.  Dickenson.  —  Rule. 


ABATEMENT. 

Note.  —  In  this,  as  in  many  other  classes  of  cases,  it  has  been  decided  —  in  order 
to  meet  the  requirements  of  those  American  States  which  retain  many  of  the  older  forms 
of  English  procedure — to  retain  a  heading  appropriate  to  forms  of  pleading  and 
practice  now  obsolete  in  England.  In  such  cases  the  rule  is  stated  in  language  be- 
longing to  the  procedure  of  the  time,  and  must  be  understood  with  reference  to  the 
date  of  the  case. 

It  will  he  observed  that  although  pleading  in  abatement  is  obsolete,  many  of  the 
cases  referred  to  under  this  head  involve  principles  which  are  still  important,  upon  the 
question  who  are  the  proper  parties  to  an  action. 

Section      I.  As  to  Joinder  of  Plaintiffs. 

Section    II.  As  to  Joinder  of  Defendants. 

Section  III.  Various  Causes  of  Abatement. 

Section  IV.  Requirements  of  a  Good  Plea  in  Abatement. 


Section  I.  —  As  to  Joinder  of  Plaintiff's. 

No.  1.— DOCKWRAY    v.   DICKENSON. 

(1696.) 

PILE. 

A  personal  action  ought  to  be  joined  in  by  all  the  per- 
sons (as  plaintiffs)  entitled  jointly  or  in  common  to  the 
right  sued  upon  ;  if  they  do  not  join  as  plaintiffs,  then  il* 
the  action  is  in  tort  the  objection  is  matter  for  plea  in 
abatement,  —  for  the  party  may  make  a  tort  joint  and 
several.  But  if  a  plaintiff  sues  upon  a  contract  made  with 
him  and  others  jointly,  it  is  not  matter  for  abatement,  but 
may  be  given  in  evidence  under  the  plea  of  nihil  debet  or 
non  assumpsit,  —  because  it  is  another  contract. 

Dockwray  v.  Dickenson. 

Skinner,  640  (s.  c.  Comb.  366). 

At  Guildhall,  in  an  action  of  trover  for  a  ship  and  cargo,  the 
invoice  and  bill  of  lading  was  given  in  evidence  ;  the  which  was 
opposed,  because  though  it  be  evidence  between  the  freighter  and 


SECT.  1.  —  JOINDER   OF   PLAINTIFFS.  157 


No.  1.  —  Dockwray  v.  Dickenson.  -—  Notes. 


master,  yet  in  this  case  the  freighter  and  master  are  but  as  one 
person,  and  it  shall  not  be  evidence  against  a  third  person;  non 
allocatur;  for  the  bill  of  lading  is  always  read  in  the  case  of  a 
policy  to  prove  goods  on  board  (the  which  was  admitted,  but  not 
to  prove  the  value),  and  here  though  the  certainty  of  the  vain.' 
does  not  appear,  yet  insomuch  that  the  goods  were  proved  to  be 
bought  and  paid  for,  by  the  plaintiff,  and  to  amount  to  such  a  sum, 
and  that  the  invoice  and  bill  of  lading  agreed;  and  that  they  were 
entered  as  put  on  board  such  a  ship;  and  that  they  were  carried  to 
the  place  where  the  ship  was  taken;  and  that  when  the  ship  was 
taken,  there  were  such  goods  on  board;  and  the  master  being  dead, 
his  hand  to  the  bill  of  lading  was  proved,  and  the  master  if  he  was 
present  might  be  sworn  ;  and  therefore  in  this  case  they  might 
prove  his  hand;  for  these  reasons  the  bill  of  lading  was  read; 
upon  the  reading  of  which  it  was  objected  that  the  cargo  was 
shipped  by  A.  and  B.  and  Company,  and  B.  being  dead,  the  action 
brought  by  A.  only  is  ill,  because  it  appears  that  others  have  an 
interest,  who  ought  to  be  named;  non  allocatur;  for  it  does  not 
appear,  and  this  ought  to  be  proved  (but  in  this  case  it  seemeth  as 
if  it  might  be  presumed),  and  if  there  are  others  this  is  a  matter  in 
abatement,  and  it  ought  to  be  pleaded;  and  the  difference  is, 
where  it  is  an  action  founded  upon  a  tort,  as  here,  and  Not  guilty 
pleaded,  and  where  it  is  founded  upon  a  contract. 

ENGLISH    NOTES. 

(1)  As  to  torts  :  — 

In  trover  by  two  out  of  three  joint  tenants  of  goods,  on  plea  of  not 
guilty,  held  that  the  plaintiffs  should  not  be  nonsuited,  but  should 
recover  two-thirds  of  the  damage.  Observed,  that  the  matter  might 
have  been  pleaded  in  abatement,  quoad  tantum.  Nelthorpe  v.  Dor- 
rington  (1674),  2  Levinz,  113. 

Addison  v.  Overend  (179G),  6  T.  R.  766,  and  Sedgeworth  v.  Overend 
(1797),  7  T.  R.  279,  were  two  actions  separately  brought  by  two  co- 
owners  of  a  ship  against  the  same  defendant  for  damage  by  a  tort 
(running  down).  In  the  former  action,  the  defendant  not  having 
pleaded  in  abatement,  the  plaintiff  recovered  in  respect  of  the  damage 
to  his  share  of  the  property.  In  the  latter  action,  the  defendant 
pleaded  in  abatement,  and  it  was  held  that  the  plea  could  not  be  sus- 
tained because  the  other  owner,  having  recovered  his  share  of  the 
damage,  could  not  have  been  properly  joined  in  the  action.  So  that 
the  plaintiff  was  right  in  suing  alone. 


158  ABATEMENT. 


No.  1.  —  Dockwray  v.  Dickenson.  —  Notes. 


In  trover  by  one  of  several  assignees  of  a  bankrupt,  an  assignee  who 
lias  been  removed  without  being  divested  of  the  legal  estate  must  be 
joined.  If  he  is  not  joined,  advantage  can  only  be  taken  by  plea  in 
abatement;  and  if  this  is  not  done,  the  plaintiff  can  only  recover  a  pro- 
portionate part  of  the  damage.  Bloxham  v.  Hubb<ird  (1804),  5  East, 
407. 

In  detinue,  upon  issue  joined  denying  the  propert}^  in  the  plaintiff, 
it  is  no  defence  that  there  are  other  persons  co-tenants  with  the  plain- 
tiff, who  are  not  joined  in  the  action.  Broadbent  v.  Led  want  (1839), 
11  Ad.  &  El.  209.  So  in  trover  :  but  the  case  is  different  where  counts 
have  been  added  setting  up  a  contract  of  bailment  made  with  the  plain- 
tiff alone.  In  the  latter,  a  plea  stating  that  the  goods  were  joint 
property,  pleaded  in  abatement  to  the  whole  declaration,  is  bad.  Phil- 
ipsx.  Claggett  (1841),  10  M.'&W.  102;  11  L.  J.  Exch.  349. 

May  v.  Harvey  (K.  B.  1811),  13  East,  197,  12  II.  R.  322,  is  an  instruc- 
tive case.  The  assignee  in  bankruptcy  of  B.  sues  D.  in  trover  for  a  lease, 
after  demand  and  refusal  to  deliver  it  up.  Issue  having  been  joined 
and  the  case  tried,  the  facts  appeared  as  follows:  The  lease  had  been 
assigned  by  A.  to  B.  who,  to  save  the  expense  of  a  counterpart,  agreed 
that  the  lease  should  be  deposited  with  C.  on  their  joint  account. 
B.  subsequently  deposited  the  lease  in  C.'s  hands  without  mentioning 
that  it,  was  on  joint  account.  B.,  having  become  bankrupt,  illegally 
(as  against  the  assignee  in  bankruptcy)  assigned  the  lease  to  D.,  to 
whom  C.  by  B.'s  authority  delivered  it.  The  plaintiff  obtained  a 
verdict  and  the  Court  upheld  it.  But  Lord  Ellexborough,  C.  J.,  in- 
timated that  if  the  lease  had  been  deposited  by  A.  and  B.,  and  C.  had 
agreed  to  keep  it  for  the  two,  it  was  not  in  the  power  of  one  of  them 
(or  of  the  assignee  who  represented  that  one)  to  take  it  out  of  his 
hands  without  the  assent  of  the  other.  But  in  the  present  case  C.  & 
1).  dealt  with  the  lease  as  belonging  to  B.  alone.  [That  is  to  say,  the 
action  of  C.  &  D.  was  a  pure  tort  involving  no  question  of  contract. 
That  it  may  have  been  a  tort  as  against  A.,  as  well  as  against  B.'s 
assignee,  was  of  course  immaterial  after  verdict.] 

(2)  As  to  contracts :  — 

"All  the  persons  with  whom  a  contract  is  made  must  join  in  an 
action  for  breach  of  it."     Dicey  on  Parties,  Rule  13. 

"I  take  it  to  have  been  solemnly  adjudged  in  several  cases,  and  to 
be  known  received  law,  that  one  co-covenantee,  one  co-obligee,  or  one 
joint  contractor  by  parol,  cannot  sue  alone."  Per  Curiam  (in  judgment 
delivered  by  Eyre,  C.  J.),  in  Scott  v.  Godwin  (C.  P.  1797),  1  Bos.  & 
Pul.   67,   71. 

A  covenant  or  promise  to  two,   if  proved  in  an  action  brought  by 


SECT.  I.  —  JOINDER   OF   PLAINTIFFS.  159 

No.  1.       Dockwray  v.  Dickenson. — Notes. 

one  of  them,  sustains  a  plea  which  denies  the  existence  of  the  con- 
tract. Wetherell  v.  Langston  (1847),  1  Ex.  684,  per  Wilde,  C.  J., 
<>44.  Nor  does  it  avail  a  plaintiff  that  the  joint  covenantee  did  not 
seal  the  deed.  Petrie  v.  Bury  (1824),  3  B.  c\:  C.  .'!."">.-;.  In  the  case 
of  Wetherell  v.  Langston  (siipr.),  it  was  held  that  it  did  not  avail  the 
plaintiff  that  the  joint  covenantee  had  disclaimed  by  deed  (to  which 
the  covenantor  was  no  party).  But  that  decision  lias  since  been  doubted, 
by  Parke,  B.,  in  Linwood  v.  Squire  (1854),  5  Ex.  235. 

In  an  action  upon  a  contract  brought  by  one  of  two  assignees  of  an 
insolvent  debtor  under  the  Act  7  &  8  Vict,  c.  90,  the  non-joinder  of 
the  others  is  not  matter  for  plea  in  abatement,  but  is  a  fatal  objection, 
under  a  plea  that  the  plaintiff  is  not  assignee  modo  ft  forma.  Jones  v. 
Smith  (1848),  1  Ex.  831;  18  L.  J.  Exch.  145. 

Executors  ought  all  to  be  joined  as  plaintiffs  in  an  action  against  a 
debtor  to  the  estate.  But  the  case  is  so  far  exceptional  that  the  non- 
joinder may  (and  therefore  must)  be  pleaded  in  abatement.  Smith  v. 
Smith,  6  Jac.  (1608),    Yelv.  130;  1  Saund.  291. 

One  of  two  executors  having  absconded,  the  other  executor  sued  a 
mortgagor.  The  court  refused  on  the  application  of  the  defendant  to 
add  the  absconding  executor  as  defendant.  Drage  v.  llartopp  (1885), 
28  Ch.  D.  414;  54  L.  J.  Ch.  434. 

Partners  must  all  join  as  plaintiffs  in  an  action  for  breach  of  a  con- 
tract made  with  the  partnership.  Teed  v.  El  worthy  (1811),  14  East, 
210;  Garrett  v.  Handley  (1824),  3  B.  &  C.  462;  Garrett  and  another 
v.  Handley  (1825),  4  B.  &  C.  664.     Except  that — 

(a)  A  dormant  partner  need  not  be  joined  as  plaintiff.  Leveck  v. 
Shafto  (1795),  2  Esp.  468;  Lloyd  v.  Archboicle  (1810),  2  Taunt.  324; 
Mawmanv.  Gillett  (1809),  lb.  325  n. ;  Lindley  on  Partnership,  5th 
ed.  p.  276. 

(If)  Partners  may  authorize  certain  persons  (of  their  own  number  or 
otherwise)  to  act  for  them  and  to  sue  alone  upon  contracts  expressly 
entered  into  with  those  persons.  Such  persons  would  be-  called  direc- 
tors. Per  Littledale,  J.,  Phelps  v.  Lyle  (1839),  10  Ad.  &  El.  116. 
[But  in  this  case  it  appeared  that  four  persons  had  been  so  authorized 
as  directors,  one  of  whom  had  become  bankrupt,  but  it  did  not  appear 
that  this  put  an  end  to  his  authority  as  director.  In  an  action  by  the 
remaining  three  directors  they  were  nonsuited.] 

(c)  An  action  may  be  maintained  (under  an  express  contract  not 
disclosing  the  partnership  deed)  either  in  the  name  of  the  person  with 
whom  the  contract  was  actually  made,  or  in  the  name  of  the  parties 
really  interested;  per  Curiam,  Skinner  v.  Stocks  (1821),  4  B.  &  Aid. 
437;  Sims  v.  Bond  (1833),  5  B.  &  C.  389,  393;  —the  defendant  being 
in  the  latter  case  (if  he  really  was  induced  to  enter  into  the  contract 


160  ABATEMENT. 


No.  1.  —  Dockwray  v.  Dickenson.  —  Notes. 


by  the  belief  that  the  person  was  contracting  on  his  own  account, 
Cooke  v.  Eshelbg,  H.  L.  1887,  12  App.  Cas.  271,  56  L.  J.,  Q.  B.  505), 
entitled  to  be  placed  (as  to  set-off  or  otherwise)  in  the  same  situation  at 
the  time  of  the  disclosure  of  the  real  principal  as  if  the  agent  had  been 
the  contracting  party.  Sims  v.  Bond,  nt  supr.  The  principle  here 
stated  belongs  to  the  general  law  of  principal  and  agent  as  applied  to 
partnership. 

(d)  The  partner  with  whom  the  contract  was  immediately  made  may 
sue  alone  if  there  was  a  separate  consideration  moving  from  him. 
Agaclo  v.  Forbes  (1861),  14  Moore  P.  C.  160. 

It  will  be  observed  that  the  exception  (c)  is  only  a  particular  case 
of  implied  authority  within  the  principle  of  the  exception  (&). 

That  the  rule  is  of  substantial  importance  will  appear  on  considering 
the  following  case.  There  are  two  commercial  partnerships,  one  con- 
sisting of  A.  &  B.  and  the  other  of  B.  &  C.  The  house  consisting  of 
A.  &  B.  indorse  a  bill  of  exchange  to  the  other  house,  B.  &  C.  The 
bill  is  satisfied  by  an  arrangement  made  between  the  former  house 
(A.  &  B.)  and  the  drawer;  A.  &  C.  cannot  sue  upon  the  bill,  because  A. 
cannot  contravene  his  own  act  in  discharging  the  bill.  Jacaud  v. 
French  (1810),  12  East,  317.  So  that  the  liability  upon  the  bill  is  at 
an  end,  which  would  not  be  the  case  if  C.  had  any  independent  right 
of  action. 

As  regards  joinder  of  plaintiffs,  covenants  are  in  a  similar  position 
to  contracts.      See  Scott  v.  Godwin,  cited  p.  158,  ante. 

In  this  case  of  Scott  v.  Godwin,  the  plaintiff  (A)  sued  alone  upon  the 
covenants  of  a  lease,  setting  forth  in  his  declaration  a  title  to  the  rever- 
sion under  a  conveyance  of  that  reversion  to  and  to  the  use  of  "  A.  &  B. 
and  the  heirs  of  B.,  in  trust  for  A.  and  his  heirs."  It  was  held  on 
demurrer  that  the  declaration  was  bad,  and  that  it  was  not  necessary  to 
take  the  objection  by  plea  in  abatement.  Eyre,  C.  J.,  in  delivering 
judgment,  cited  the  rule  mentioned  in  Cabell  v.  Vaugham,  1  Vent.  34 
(and  there  cited  from  a  case  of  Levitt  v.  Staineforth,  B.  R.  1651).  "  If 
one  be  hound  to  two,  one  obligee  cannot  sue  unless  he  avers  that  the 
other  is  dead."     Scott  v.  Godwin  (C.  P.  1797),  1  Bos.  &  Pul.  67,  74. 

Why  covenants  are  in  the  same  position  with  contracts  as  regards 
plaintiffs  and  not  as  regards  defendants,  has  been  explained  as  fol- 
lows: "  One  and  the  same  covenant  cannot  be  made  both  joint  and 
several  as  regards  the  covenantees.  It  is  otherwise  as  to  the  cove- 
nantors. Judgment  of  Parke,  B.,  in  Bradburn  v.  Botfield  (1845),  14 
M.  &  W.  559,  573;  14  L.  J.  Exch.  830. 

As  to  whether  it  is  possible  to  read  into  the  same  deed  two  separate 
and  independent  covenants  in  favour  of  parties  in  the  same  interest, 
there  is  some  conflict  of  opinion. 


SECT.  I. JOINDER    OF    PLAINTIFFS.  161 

No.  1.  —  Dockwray  v.  Dickenson.  —  Notes. 

In  Sllngsbys    Case  (in  the  Exchequer  Chamber,    1587)  5  Co.  Rep. 

181,  it  was  resolved  that  it  is  only  when  the  interests  arc  several  that 
a  covenant  with  several  persons  and  each  of  them  can  lie  a  several 
covenant;  that  where  the  interest  is  joint  the  covenant  is  joint  and  the 
words  of  severalty  are  void;  and  that  an  interest  cannot  he  granted 
jointly  and  severally,  so  that  if  a  person  purports  to  grant  an  interest 
in  this  way,  the  word  "several"  is  void.  This  case  is  universally  ac- 
knowledged as  an  unimpeachable  authority. 

In  Anderson  v.  Martindale  (K.  B.  1801),  1  East,  497;  G  E.  B.  334, 
it  was  held  that  a  covenant  to  and  with  A.,  his  executors,  administrators 
and  assigns,  and  also  to  and  with  B.  and  her  assigns,  to  pay  an  annuity 
to  A.,  his  executors,  &c,  during  the  life  of  B.,  is  a  covenant  in  which 
A.  &  B.  have  a  joint  legal  interest,  and  on  the  death  of  A.  the  right  to 
sue  upon  it  survives  to  B. 

In  Sorsbie  v.  Park  (1843),  12  M.  &  W.  146,  155,  Parke,  B.,  in  his 
judgment  states  the  principle  as  follows:  "If  there  is  a  covenant 
with  A.  and  B.  jointly  that  a  certain  thing  should  be  done  by  the 
covenantor,  both  of  them  must  sue.  But  where  it  appears  upon  the 
face  of  the  deed  that  A.  and  B.  have  separate  interests,  they  must  sue 
separately;  for  though  the  words  be  prima  facie  joint,  they  will  be 
construed  to  be  several,  if  the  interests  of  either  party  appearing  upon 
the  face  of  the  deed  shall  require  that  construction." 

Hopkinson  v.  Lee  (1845),  14  L.  J.  Q.  B.  101,  was  an  action  upon  a 
covenant  contained  in  a  deed.  By  this  deed,  after  reciting  an  agree- 
ment that  the  plaintiff  was  to  lend  the  defendant  money  held  by  the 
plaintiff  in  trust  for  X.,  whereby  the  defendant  in  consideration  of  the 
advance  covenanted  "with  the  plaintiff,  his  executors,  &c,  and  also  as 
a  separate  and  distinct  covenant  with  and  to  X.,  her  executors,  &c, 
that  ixc."  The  Court  after  argument  directed  a  nonsuit  on  the  ground 
of  the  non-joinder  of  X. 

But  in  Keightley  v.  Watson  (1849),  3  Ex.  716,  723;  IS  L.  J.  Exch. 
339,  where  there  were  words  of  covenant  expressed  to  be  with  A.,  his 
executors,  &c,  and  as  a  separate  covenant  with  B.,  his  executors,  &c, 
and  where  the  interests  of  A.  &  B.  were  clearly  separate  and  distinct, 
the  covenant  with  A.  was  held  to  be  a  separate  covenant.  A  doubt  was 
at  the  same  time  suggested  whether  Hopkinson  v.  Lee  was  rightly 
decided,  and  whether  the  words  there  did  not  so  clearly  express  the 
intention  to  make  separate  and  distinct  covenants,  that  they  should  be 
so  treated  just  as  if  they  had  been  contained  in  separate  instruments. 

And  in  Palmer  v.  Mallet  (1887),  36  Ch.  D.  411;  57  L.  J.  Ch.  226, 
where  there  was  an  agreement  secured  by  a  penal  bond  entered  into 
between  the  defendant  and  a  firm  of  two  medical  men  (A.  &  B.)  not  to 
set  up  in  competition   with  them;    it  was  held  that  on  the  dissolution 

VOL.    1.  11 


162  ABATEMENT. 


No.  1.  —  Dockwray  v.  Dickenson. — Notes. 


of  the  partnership  there  arose  in  each  partner  a  several  interest  which 
the  agreement  was  intended  to  protect;  and  that  A.  suing  alone  was 
entitled  to  an  injunction. 

The  strict  rule  as  to  joinder  of  plaintiffs  must  have  led  to  frequent 
failures  of  justice  had  it  not  been,  for  the  practice  by  which  a  plaintiff 
under  certain  conditions  was  allowed  to  use  the  name  of  a  co-plaintiff. 
It  is  laid  down  that  one  partner  may  use  the  name  of  his  co-partners  in 
legal  proceedings,  and  that  they  cannot  stay  the  proceedings;  but  the 
partner  who  objects  has  a  right  to  be  indemnified  against  the  costs. 
Whitehead  v.  Hughes  (1833),  2  Dowling  Pr.  Ca.  258.  The  same  rule 
held  good  for  every  joint  right  under  contract,  at  all  events  where  the 
contract  had  been  originally  made  with  the  authority  (express  or  im- 
plied) of  the  person  whose  name  is  so  used.  But,  on  the  other  hand, 
one  of  two  joint  plaintiffs  might  release  the  defendant,  and  the  question 
as  to  his  right  to  do  so  could  have  been  raised  on  a  suggestion  to  the 
court,  that  the  release  is  fraudulent.  Emery  v.  Macklow  (1833),  10 
King.  23.  Where,  however,  the  whole  transaction  was  unauthorized 
by  the  person  whose  name  is  so  used  as  plaintiff,  he  is  entitled  to  have 
his  name  struck  out.  Langston  v.  Wetherell  (1858),  27  L.  J.  Ex.  400. 
[See  Dicey  on  Parties,  p.  107  n.  It  is  not  unimportant,  even  in  the 
modern  practice  under  the  English  Judicature  Acts,  to  observe  how 
the  rules  worked  under  the  old  practice.] 

(3)  As  to  real  actions  :  — 

The  rule  as  to  joinder  of  plaintiffs  in  real  actions  and  in  ejectment 
was  different. 

"The  old  rule  certainly  was,  that  in  all  real  actions  tenants  in 
common  must  sever,  and  that  in  personal  actions  they  must  join.  In 
mixed  actions  they  were  to  sever.  I  do  not  see  that  the  fictitious 
nature  of  the  proceedings  in  ejectment  suggests  any  reason  for  depart- 
ing from  the  rule."  Per  Littledale,  J.,  in  Doe  d.  Poole  v.  Errington 
(1834),  1  Ad.  &  El.  750. 

It  was  consequently  held  in  the  case  just  cited  that  tenants  in  com- 
mon could  not  recover  in  ejectment  under  a  count  alleging  a  joint 
demise  by  them  to  the  nominal  plaintiff.  This  result  was  altered  by 
the  practice  under  the  C  L.  P.  Act  1852  (15  &  16  Vict.  c.  76,  §  180, 
and  schedule  No.  13,  &c).  For  the  forms  there  given  equally  apply 
whether  the  plaintiffs  claim  as  joint  tenants,  tenants  in  common,  or 
otherwise.  It  would  therefore  seem  that  in  an  action  by  some  of 
tenants  in  common  for  the  recovery  of  land  there  is  no  necessity  of 
amending  to  make  the  action  maintainable;  nor  can  there  be  any  doubt 
of  the  right  of  the  plaintiffs  in  such  an  action  to  recover  according  to 
the  interest  represented  by  them. 


SECT.  I. — JOINDER   OF   PLAINTIFFS.  16; 


No.  1.  —  Dockwray  v.  Dickenson. — Notes. 


Modem  practice  (under  Judicature  Acts)  as  to  joinder  of  Plaintiffs 
in  personal  actions. 

The  rigid  necessity  as  to  the  correct  joinder  of  plaintiffs  became 
modified  by  the  power  of  amendment  introduced  by  the  C.  L.  P.  Acts, 
1852  (15  &  16  Vict.  c.  70,  ss.  35,  36),  and  I860,  23  ,v  24  Vict. 
c.  126,  s.  19);  and  still  more  by  the  rules  of  the  Supreme  Court  under 
the  Judicature  Acts,  particularly  O.  16,  Rules  1,  2  and  11. 

It  is  moreover  by  0.  21,  R.  20,  enacted  that  no  plea  or  defence  shall 
be  pleaded  in  abatement. 

And  by  O.  48a.  made  on  19th  June,  1891  (and  which  repealed  the 
former  rules  as  to  partners  suing  and  being  sued),  partners  carrying  on 
business  within  the  jurisdiction  may  sue  and  be  sued  in  the  name  of 
their  respective  firms. 

It  was  held  by  V.  C.  Malins  in  Sheehan  v.  G.  E.  By.  Co.  (1880), 
1G  Ch.  D.  59,  50  L.  J.,  Ch.  68,  that  an  objection  by  a  defendant  that 
other  persons  should  have  been  joined  as  plaintiffs  should  be  made 
promptly  under  rules  of  court  (see  new  O.  16,  R.  12),  and  that  if  this 
is  not  done  the  objection  will  not  be  listened  to  at  the  hearing.  The 
Vice-Chancellor  referred  to  Hunter  v.  Young  (1879),  4  Ex.  D.  256, 
48  L.  J.,  Exch.  G89  ;  which  was  a  similar  decision  of  the  Court  of 
Appeal  in  regard  to  the  non-joinder  of  a  defendant. 

In  Turquand  v.  Fearon  (1879),  27  W.  R.  396,  48  L.  J.,  Q.  B.  341. 
a  divisional  court  (Mellor  &  Field,  JJ.)  held  that  where  applica- 
tion is  made  under  Order  16,  R.  2  to  add  another  person  as  plaintiff, 
the  court  will  require  proof  of  the  consent  of  that  person.  [It  may  be 
questioned  whether  this  is  consistent  with  the  principle  stated  in  the 
case  next  below  cited,  unless  the  court  were  prepared  at  the  hearing 
to  dispense  with  the  joinder  of  this  person.  But  that  would  be  a  wider 
departure  from  the  old  common-law  practice  than  adding  his  name 
without  his  consent]. 

A  patentee  who  had  mortgaged  his  patent  rights  brought  an  action 
against  an  infringer  who  pleaded  (inter  alia)  that  the  plaintiffs  were 
not  the  proprietors  and  were  not  entitled  to  sue.  The  mortgagee  had 
declined  to  join  as  plaintiff,  and  had  not  been  made  a  defendant.  The 
Court  of  Appeal  held  that  if  necessary  the  mortgagee  could  be  added  as 
a  defendant  under  0.  16,  R.  11.  Lord  Justice  Bowex  observed:  "It 
is  of  the- essence  of  the  procedure  since  the  Judicature  Act  to  take  care 
that  an  action  shall  not  be  defeated  by  the  non-joinder  of  right  parties." 
Van  Gelder  v.  Sowerby  Bridge,  &c.  Society  (C.  A.  1880)  44  Ch.  D. 
374;    59  L.  J.,  Ch.  292. 

In  Richards  v.  Butcher  (1890),  62  L.  T.  867,  where  the  plaintiffs. 
importers  of  champagne,  sued  a  defendant  for  breach  of  trademark",  it 
was  held,  by  Kay,   J.,  after   argument  on  the  point  of  law.    that  the 


164  ABATEMENT. 


No.  1.  —  Dockwray  v.  Dickenson.  —  Notes. 


plaintiffs  being  mere  licencees,  had  no  right  to  sue;  but  lie  gave  leave  to 
amend  by  making  the  owner  of  the  trademarks  plaintiffs.  The  report 
does  not  mention  whether  there  was  any  assent  to  this  on  the  part  of 
the  owners,  but  it  may  be  inferred  that  there  was. 

AMERICAN  NOTES. 

1.  As  to  Torts.  Non-joinder  of  plaintiff  in  tort,  unless  it  appears  on  the 
face  of  the  declaration,  may  be  taken  advantage  of  only  by  plea  in  abatement. 
Scott  v.  Brown,  3  Jones  Law  (No.  Carolina),  547,  67  Am.  Dec.  256  ;  by  Kent, 
C.  J.,  in  Wheelwright  v.  Depeyster,  1  Johnson  (New  York),  471  ;  3  Am.  Dec. 
345,  citing  the  principal  case,  Johnson  v.  Richardson,  17  Illinois,  302  ;  63  Am. 
Dec.  369  ;  Hart  v.  Fitzgerald,  2  Massachusetts,  509,  Deal  v.  Bogue,  20  Penn. 
St.  228;  57  Am.  Dec.  702,  citing  Addison  v.  Overend,  6  T.  K.  766;  Backensloss 
v.  StaMer's  Admrs.  33  Penn.  St.  251;  75  Am.  Dec.  592;  Clapp  v.  Pawtucket 
Inst.,  15  Rhode  Island,  494;  Bell  v.  Layman,  1  T.  B.  Monroe  (Kentucky),  39; 
15  Am.  Dec.  83 ;  Gordon  v.  Goodwin,  2  Nott  and  McCord  (So.  Carolina),  70 ; 
10  Am.  Dec.  573. 

Or  by  way  of  apportionment  of  damages  on  the  trial.  Gilbert  v.  Dickerson, 
7  Wendell  (New  York),  449  ;  22  Am.  Dec.  592;  Whitney  v.  Stark,  8  California, 
514  ;  68  Am.  Dec.  300. 

But  if  the  plaintiff  sues  in  the  right  of  another,  the  omission  is  ground  for 
nonsuit.      Gordon  v.  Goodwin,  supra. 

2.  As  to  Contracts.  Non-joinder  of  plaintiffs  need  not  be  taken  advantage 
of  by  plea  in  abatement  nor  by  demurrer,  but  may  be  given  in  evidence  under 
the  plea  of  non-assumpsit.  Hoffar  v.  Dement,  5  Gill  (Maryland),  132;  46 
Am.  Dec.  628,  citing  Eccleston  v.  Clipsham,  1  Saund.  153,  note  1;  Leglise 
v.  Champante,  2  Str.  820.  Same  principle,  Marshall  v.  Jones,  11  Maine,  54  ; 
25  Am.  Dec.  260;  Wadsioorth  v.  Woodford,  1  Day  (Connecticut),  28;  Clapp 
v.  Pawtucket  Inst.,15  Rhode  Island,  494;  Coffee  v.  Eastland,  Cooke  (Tennessee 
Federal  circuit  court),  159. 

The  objection  should  be  raised  by  demurrer,  in  bar,  or  on  the  general  issue, 
but  not  in  abatement.  Baker  v.  Jewell,  0  Massachusetts,  460;  4  Am.  Dec. 
102 ;  Scott  v.  Brown,  3  Jones  Law  (No.  Carolina),  541 ;  67  Am.  Dec.  257. 

Where  a  lull  does  not  show  upon  its  face  that  necessary  parties  plaintiff 
are  omitted,  the  remedy  is  only  by  plea  or  answer.  Robinson  v.  Smith,  3 
Paige  Cli.  222  (New  York);  24  Am.  Dec.  212. 

"The  non-joinder  of  a  person  who  ought  to  have  beeu  made  a  plaintiff  may 
lie  pleaded  in  abatement.  It  is  more  usual  to  take  advantage  of  it  on  trial, 
as  a  ground  of  nonsuit,  for  a  variance  between  the  declaration  and  the  proof 
offered.  The  subject  was  fully  considered  in  the  case  of  Scott  v.  Godwin, 
1  B.  &  P.  67."  Hilliker  v.  Loop,  5  Vermont,  116;  26  Am.  Dec.  286.  And  in 
Bakery.  Jewell,  6  Massachusetts,  460;  4  Am.  Dec.  162,  it  was  said  that  "the 
want  of  proper  plaintiffs  in  actions  on  contracts  is  an  exception  to  the  merits, 
and  is  to  be  taken  advantage  of  either  on  demurrer,  in  bar,  or  on  the  general 
issue,  but  not  by  plea  in  abatement."  citing  Scott  v.  Godwin,  supra. 

In  Scott  v.  Brown,  3  Jones  Law  (Xo.  Carolina),  541;  67  Am.  Dec.  257,  it 


SECT.  I.  —  JOINDER    OE    PLAINTIFFS.  165 


No.  1.  —  Dockwray  v.  Dickenson.  —  Notes. 


was  said:  "  In  all  actions  on  contracts,  all  in  whom  the  legal  interest  vests 
should  in  general  be  made  parties  plaintiff;  and  if  any  be  omitted  whom  the 
law  requires  to  be  joined,  the  defendant  may  take  advantage  of  the  omission 
on  the  trial,  under  the  general  issue,  as  the  contract  proved  will  not  be  the 
same  declared  on;  or  he  may  move  in  arrest  of  judgment,  or  proceed  by  writ 
of  error  if  the  defect  appear  on  the  record.  In  an  action  simply  of  tort,  as  in 
trespass  to  property,  real  or  personal,  the  defendant  must  plead  in  abatement 
the  non-joinder  of  a  part-owner,  and  cannot  take  advantage  of  the  defect  by 
way  of  nonsuit  on  the  trial ;  because  one  part-owner  may  recover  his  aliquot 
portion  of  the  damages  sustained  if  no  notice  by  plea  is  given  him  that  the 
defendant  intends  to  rely  upon  the  defect.  There  is  yet  a  third  class  of  cases, 
under  which  this  arranges  itself,  namely,  actions  of  tort  arising  ex  contractu. 
There  the  defendants  may  plead  in  abatement  or  take  advantage  on  the  trial 
as  in  an  action  purely  of  contract.  Scott  v.  Godwin,  1  B.  is.  P.  71 ;  and 
Powell  v.  Layton,  2  B.  &  P.,  N.  R.,  365,  which  is  the  fifth  volume  of  Bos.  & 
Pul. ;  Story's  Eq.  PI.  20,  87." 

The  objection  may  be  raised  by  demurrer,  in  arrest  or  in  error,  plea  in 
abatement,  or  by  motion  for  nonsuit.  Phillips  v.  Pennywit,  1  Ark.  50  ;  Dement 
v.  Rokker,  126  Illinois,  174 ;  Holijoke  v.  Loud,  69  Maine,  59. 

"There  was  formerly  some  difference  of  opinion  as  to  the  manner  in 
which  "  the  defendant  should  take  advantage  of  the  omission.  "  Cases  are  to 
be  found  in  which  it  was  ruled  that  the  defendant  could  avail  himself  of  this 
omission  only  by  plea  in  abatement ;  but  Sergeant  Williams  declares  these 
cases  not  to  be  law."  Citing  Vernon  v.  Jeffers,  2  Strange,  1116,  and  Scott  v. 
Godwin,  1  Bos.  &  Pul.  74,  the  law  "  allows  the  defendant  to  take  advantage  of 
the  non-joinder  of  the  co-obligee  when  it  appears  on  oyer,  either  by  demurrer 
or  in  arrest  of  judgment."     Ehle  v.  Purdy,  6  Wendell  (New  York),  629. 

3.  As  to  real  actions.  Non-joinder  of  a  party  to  a  real  action  must  be 
pleaded  in  abatement,  or  the  objection  is  lost.  Campbell  v.  Wallace,  12  New 
Hampshire,  362;  37  Am.  Dec.  219.  So  in  Sherman  v.  Fall  River,  fyc  Co.,  2 
Allen  (Mass.),  524;  79  Am.  Dec.  799,  it  was  held  that  the  non-joinder  of  the 
plaintiff's  co-tenant,  in  an  action  for  negligent  injury  to  lands,  could  be  raised 
only  by  plea  in  abatement.  The  same  was  held  in  partition,  in  respect  to  the 
alienage  of  one  of  the  parties.  Scanlan  v.  Wright,  13  Pickering  (Mass.),  523; 
25  Am.  Dec.  314. 

To  recover  a  legacy  charged  on  lands,  the  approved  practice  is  to  bring 
suit  against  the  executor  and  "  the  terre-tenants  generally,  without  naming 
them,  or  to  sue  them  by  name;  but  the  former  is  the  best  form,  and  in  Eng- 
land is  constantly  used  ;  for  if  the  plaintiff  undertake  to  name  them,  he 
must  name  them  all ;  and  if  he  does  not,  those  who  are  not  named  may 
plead  in  abatement.  Chahoon  v.  Hollenback,  16  Serg.  &  R.  432;  16  Am.  Dee. 
587;  Beresford  v.  Cole,  2  Saund.  7,  note  4."  McLanahan  v.  Wyant,  1  Penrose 
&  Watts  (Penn.),  96  ;  21  Am.  Dec.  363. 

In  dower,  several  tenancy  must  be  pleaded  in  abatement ;  non-tenure  may 
be  also  pleaded  in  bar.  Fosdick  v.  Gooding,  1  Greenleaf  (Maine),  30  ;  10  Am. 
Dec.  26.  The  court  observe:  "In  England,  non-tenure  is  pleadable  in  abate- 
ment only:  Booth,  28;  Comyn's  Dig.  Abatement,  F.  14."  A  plea  of  non- 
tenure "  would  have  been  good  here,  though  not  in  England." 


1GG  ABATEMENT. 


No.  2.  —  Boulston  v.  Sandiford.  —  Rule. 


One  tenant  in  common,  sued  alone  in  trespass,  trover,  or  case,  for  anything 
respecting  the  common  land,  may  plead  in  abatement  the  non-joinder  of  his 
co-tenant.     Southard  v.  Hill,  41  Maine,  92 ;  69  Am.  Dec.  85. 

In  an  action  for  coal  wrongfully  removed  from  land  and  converted,  if  the 
plaintiff  has  not  the  legal  title,  the  defendant  need  not  plead  in  abatement, 
but  may  raise  the  objection  under  the  general  issue,  or  if  the  error  appears  on 
the  face  of  the  declaration,  by  demurrer  on  motion  in  arrest  of  judgment. 
McLean  County  Coal  Co.  v.  Long,  91  111.  617. 

In  many  of  the  United  States  the  foregoing  rules  are  inapplicable,  because 
the  matter  is  regulated  by  statute  or  code,  and  defect  of  parties  plaintiff  must 
be  raised  by  demurrer. 


Section  II.  — As  to  Joinder  of  Defendants. 

No.  2.  — BOULSTON   v.   SANDIFORD. 

(a.  d.  1690.) 

RULE. 

If  an  action,  although  formally  laid  in  tort,  is  grounded 
on  the  duty  undertaken  by  a  contract,  all  the  contrac- 
tors upon  whom  the  duty  lies  ought  to  be  joined  as 
defendants  ( per  Curiam). 

But  (according  to  the  opinion  of  Dolben,  J.,  which, 
although  overruled  in  this  case,  has  since  been  ac- 
cepted  as  law)  the  defendant  can  only  take  advantage 
of  the  non-joinder  of  other  co-contractors  by  plea  in 
abatement. 

In  an  action  on  the  case  against  shipowners  as  common 
carriers  of  goods,  the  defendants  pleaded  not  guilty  ;  and 
at  the  trial  objection  was  taken,  and  a  special  verdict 
found,  that  there  were  other  part-owners  besides  the 
defendants,  and  that  all  the  owners  constituted  the  master 
and  mariners.  It  was  agreed  by  all  the  court  that  all  the 
owners  ought  to  have  been  joined,  and  held  by  the  ma- 
jority (Holt,  C.  J.,  Gregory  and  Eyres,  JJ.)  that  the 
objection  could  not  have  been  pleaded  in  abatement,  but 
was  well  taken  under  the  general  issue  at  the  trial.  So 
that  judgment  was  given   for  the  defendant.     Dolben,  J., 


SECT.  II. — JOINDER    OE    DEFENDANTS.  1G7 

No.  2.  —  Boulston  v.  Sandiford. 

contra,  because  it  might  have  been  pleaded  in  abatement. 
X.  B.  —  It  is  the  opinion  of  Dolben,  J.,  which  has  become 
established  as  law. 

Boulston  v.  Sandiford. 

Skinner,  278  (s.  c,  s.  n.  Boson  v.  Sandford,  1    Shower,   101;    Comb.    118; 
Carthew,  58;   2  Freeman,  499). 

Action  upon  the  case,  in  which  the  plaintiff  declares  against  the 
defendants  as  owners  of  a  bark,  and  shows  that  they  constituted 
J.  S.  master,  who  received  such  goods  aboard  to  be  carried  from 
London  to  Topsam,  and  that  the  defendants  super  se  susceperunt  to 
carry,  &c,  and  shows  that  the  goods  were  damaged ;  upon  which, 
&c,  upon  Not  guilty  pleaded,  the  jury  found  a  special  verdict,  scil. 
that  the  defendants  were  part-owners,  but  that  there  were  other 
owners  insimul  cum  the  defendants;  and  that  all  the  owners 
constituted  the  master  and  mariner,  that  the  goods  of  the  plain- 
tiff were  delivered  to  the  master  to  be  carried  from  London  to 
Topsam,  and  that  they  were  damaged,  &c ,  and  whether  (the  action 
not  being  brought  against  all  the  owners,  but  only  against  the 
defendants)  judgment  shall  be  given  for  the  plaintiff  was  the 
question. 

Adjudged  by  Holt,  Chief  Justice,  Gregoky  and  Eyres,  for  the 
defendants ;  Justice  Dolben,  e  contra,  because  it  might  have  been 
pleaded  in  abatement. 

Holt,  Chief  Justice  :  The  action  in  this  case  might  have  been 
brought  against  the  master  alone  without  question,  as  in  the  case 
of  Morse  and  Slue,  and  the.  master  is  in  the  nature  of  an  officer ; 
it  might  also  have  been  brought  against  the  owners,  because  they 
have  a  benefit,  scil.  the  freight  ;  and  if  there  be  a  default  in  the 
master,  they  are  chargeable,  for  the  master  is  their  servant,  and 
appointed  by  them.  And  in  this  case,  the  defendants  are  not 
chargeable  in  respect  of  the  ownership,  but  of  the  advantage  which 
they  have  by  the  freight ;  and  therefore  where  part  of  the  owners 
would  employ  the  ship,  and  the  others  would  not,  in  such  case  the 
advantage  of  the  voyage  will  belong  to  them  who  fit  and  employ 
the  ship,  and  not  to  them  who  dissented;  and  if  any  damage  be 
to  the  lading,  the  action  shall  be  only  against  them  who  fitted 
the  ship,  and  not  against  the  others  ;  so  ownership  is  not  the 
foundation  of  this  action,  but  the  trust  and  recompense,  and  the 
trust  in  this  case  is  as  well  with  the  others,  as  with  the  defend- 


168  ABATEMENT. 


No.  2.  —  Boulston  v.  Sandiford. 


ants,  for  the  goods  were  delivered  to  the  master,  and  not  to  the 
defendants,  and  the  receipt  of  the  master  is  the  receipt  of  the 
owners,  soil,  of  all  the  owners  who  appointed  him  ;  and  in  every 
trust  there  is  a  contract  implied,  and  the  trust  being  in  all  the 
owners,  the  contract  shall  be  so  also;  and  therefore  he  agreed  that 
the  case  of  a  common  carrier  did  not  differ  from  the  present  case ; 
and  if  this  was  in  the  case  of  a  common  carrier,  all  the  partners 
ought  to  be  joined  ;  for  they  being  upon  the  implied  contract,  all 
privies  to  the  contract,  they  ought  to  be  joined  in  the  action,  and 
super  se  susceperunt  extends  to  all ;  and  this  not  being  done,  the 
defendants  may  take  advantage  of  it  upon  the  general  issue:  If 
the  plaintiff  had  declared,  that  in  consideration  he  had  promised  to 
pay  the  defendants  so  much,  they  assumed  to  carry  such  goods,  and 
non  assumpserunt  pleaded,  he  did  not  doubt  but  that  the  defend- 
ants might  have  taken  advantage  upon  the  general  issue,  that  this 
promise  was  also  with  A.  and  B.  not  named,  &c,  and  that  such 
special  consideration  is  sufficient  to  charge  a  carrier ;  he  cited 
2  Cr.  262,  Rogers  versus  Head  &  Pasch,  4  Car.  E.  B.  in  the  case  of 
Symonds  &  Darhnoll ;  per  Hide,  C.  J.,  the  delivery  makes  a  con- 
tract, and  the  not  alleging  that  he  was  a  common  lighterman 
does  not  hurt,  Palmer,  523 ;  and  per  Holt,  a  carrier  is  bound  to 
carry  as  well  as  an  innkeeper  to  receive  guests.  Also  in  this  the 
employment  is  joint,  and  like  to  the  case  of  joint  officers,  they  all 
make  but  one  person,  and  a  breach  of  trust  by  one  is  the  breach  of 
all :  The  consideration  is  to  be  paid  to  all,  and  therefore  all  ought 
to  be  charged,  and  the  benefit  is  the  cause  of  the  charge,  as  in  2  Cr. 
189,  in  the  case  of  Clerk  &  Gelly,  where  a  man  left  his  goods  in  an 
inn,  and  departed  for  two  or  three  days,  and  in  the  interim  they 
are  stolen  ;  the  innkeeper  shall  not  answer  for  them,  because  he 
had  no  benefit  by  the  custody  of  the  goods ;  but  if  it  were  an  horse 
it  would  be  otherwise  :  Suppose  in  this  case  the  owners  had  brought 
an  action,  the  defendant  shall  take  advantage,  that  some  of  the 
owners  are  not  named  upon  the  general  issue,  and  the  case  of  a 
joint  bond  differs,  for  there  the  deed  is  several ;  and  if  one  is 
dead,  there  the  declaration  against  the  other  alone  is  good;  and 
upon  Non  est  factum  he  shall  not  have  the  advantage,  because  this 
is  his  deed,  and  a  several  deed ;  but  because  the  lien  is  joint,  there 
if  it  be  pleaded  in  abatement,  that  another  sealed  the  deed,  who  is 
not  named,  and  is  yet  living,  there  judgment  shall  be  against  the 
plaintiff;  but  if  it  was  upon  a  contract,  and  Nil  debet  pleaded,  there, 


SECT.  II. — JOINDER   OF   DEFENDANTS.  169 

No.  2.  —  Boulston  v.  Sandiford.  --  Notes. 

without  question,  the  defendant  might  give  in  evidence  that  the 
contract  was  between  him  and  A  B.,  &c,  not  named,  and  upon  this 
it  would  be  against  the  plaintiff:  Suppose,  in  this  case,  this  had 
been  pleaded  in  abatement,  how  shall  it  be  pleaded,  —  shall  it  be 
that  you  are  part-owners  and  that  others  are  owners,  simul  cum? 
this  would  not  be  good,  for  it  may  be  that  you  alone  employed  the 
ship:  shall  it  be  that  A.  and  B.  are  owners,  and  employed  the  ship 
simul  cum  you  ?  this  would  not  be  good  without  an  Absque  hoc 
that  you  employed,  as  the  plaintiff  has  supposed,  and  would  not 
this  have  amounted  to  the  general  issue;  and  is  not  this  another 
undertaking  ?  so  that  he  did  not  see  how  this  shall  be  pleaded  in 
abatement.  He  confessed  that  7  H.  4,  8,  is  that  in  an  action  upon 
the  case  joint-tenancy  ought  to  be  pleaded  in  abatement,  which  is 
the  only  case  that  he  knew  where  it  ought  to  be  pleaded  in  a  per- 
sonal action  ;  b,ut  he  said  that  this  was  a  personal  action  in  regard 
of  a  real  charge  scil.,  for  not  repairing  of  a  wall,  &c,  and  in  those 
days,  upon  actions  for  non-feasance,  Not  guilty  was  not  pleaded  ; 
but  they  pleaded  specially,  and  traversed  any  special  point  alleged 
in  the  declaration  :  and  Not  guilty  to  such  actions  was  not  pleaded 
till  after  the  time  of  the  case  of  Yalding  v.  Tay,  Moor,  355  ;  and 
he  cited  the  case  of  Cole  v.  Wilkes,  Hutton,  121,  which  was  debt 
against  a  joint  lessee  for  not  setting  out  of  tithes,  and  held  upon  a 
trial  at  bar,  that  it  does  not  lie:  but  there  it  being  found  that  one 
only  occupied  the  land,  adjudged  that  the  action  wTell  lay.  And  he 
said  that  Not  guilty  is  a  good  plea  in  debt  upon  the  statute  for  not 
setting  out  of  tithes,  as  Moor,  914,  Champernoon  v.  Hill.  He 
said  that  he  desired  to  be  of  opinion  for  the  plaintiff,  if  he  might, 
but  the  law  would  not  permit  him;  for  though  it  be  hard  to  com- 
pel the  plaintiff  to  take  notice  who  are  the  owners,  yet  is  it  not 
more  hard,  that  if  victuals  or  any  other  tiling  be  delivered  to  the 
use  of  the  ship  that  the  plaintiff  will  sue  the  owners,  when,  with- 
out question,  he  might  have  sued  the  master  ?  and  so  he  concluded 
for  the  defendant. 

ENGLISH   NOTES. 

The  above  is  the  much-canvassed  case  commonly  known  under  the 
name  of  Boson  v.  Sandford,  under  which  it  is  reported  in  Shower. 
Although  Shower's  report  gives  the  opinion  of  the  several  judges  more 
in  detail,  it  adds  nothing  essential  to  the  more  elegant  report  in 
Skinner.  It  has  since  been  acknowledged,  and  must  now  be  considered 
as  settled  law,  that  the  opinion  of  Dolbex,  J.,  upon  the  point  in  differ- 


170  ABATEMENT. 


No.  2.  —  Boulston  v.  Sandif ord.  —  Notes. 


cnce  was  right,  and  the  decision  of  the  majority  was  wrong.  Bearing 
this  in  mind,  the  case  remains  still  the  most  instructive  of  the  old  cases 
as  to  joinder  of  defendants.  The  statement  hy  Lord  Ellenborougii  in 
Govett  v.  Radnidfje,  3  East,  G8;  6  K.  Ii,  542,  that  the  case  of  Boson  v. 
Sandford  has  beeu  "shaken  to  its-  foundation  in  the  main  points  which 
it  assumed  to  determine,"  is  clearly  an  exaggerated  expression.  It  will 
be  observed  that  all  the  judges  concur  in  the  first  of  the  propositions 
stated  in  the  above  rule  ;  and  they  were  likewise  agreed  upon  the  point 
that  if  the  matter  could  have  been  pleaded  in  abatement,  the  objection 
could  not  have  been  taken  under  the  general  issue  at  the  trial.  Upon 
these  jjoints  the  decision  is  still  unshaken. 

That  the  non-joinder  of  defendants  who  are  alleged  to  be  jointly 
chargeable  with  a  duty  ex  contractu  is  pleadable  in  abatement,  and  can- 
not be  taken  advantage  of  upon  the  general  issue,  may  be  considered 
as  finally  settled  by  the  decisions  in  Rice  v.  Shute  (K.  B.  1770),  5  Burr. 
2611,  and  Abbott  v.  Smith  (C.  P.  1774),  2  Bl.  947.  The  latter  of  these 
cases  is  instructive  as  establishing  the  true  doctrine  by  older  author- 
ities in  the  Year  Books  (Mich.  35  H.  6,  .38  ;  Trim  9  Ed.  4,  24  B,  and 
Pasch.  10  Ed.  4,  5),  which  support  the  opinion  of  Dolbex,  J.  in  Bouts- 
ton  v.  Sandiford,  and  as  pointing  out  the  convenience  of  the  rule, 
namely,  that  "by  forcing  the  defendant  to  plead  this  in  abatement, 
or  waive  it  entirely,  he  cannot  turn  the  plaintiff  round  more  than  once, 
by  setting  up  fresh  partners  upon  every  fresh  action.1'  He  is  to  plead  the 
whole  truth  of  the  case,  and  give  the  plaintiff  a  better  writ  (2  Bl.  951). 

It  may  be  observed  that  Lord  Mansfield's  decision  in  Bice  v.  Shute, 
supra,  is  accompanied  by  the  dictum  that  "all  contracts  with  partners 
are  joint  and  several."  But  the  principle  that  non-joinder  of  co-con- 
tractors is  pleadable  only  in  abatement  clearly  does  not  rest  upon  this 
dtctum,  as  appears  from  the  reasoning  and  authorities  given  in  Abbott  v. 
Smith.  At  all  events  that  dictum  is  repudiated  by  the  authority  of  the 
House  of  Lords  in  Kendall  v.  Hamilton  (1879),  4  App.  Ca.  504;  48 
L.  J.,  C.  P.  705;  and  it  is  now  settled  law  that  such  a  contract  is  only 
several  in  the  sense  that  on  the  death  of  one  of  the  partners  there  arises 
a  several  liability  in  equity  of  the  estate  of  the  deceased  partner  for  the 
partnership  debts.  See  Kendall  v.  Hamilton,  p.  175,  post,  and  In  re 
Hodgson,  Beckett  v.  Ramsdale  (C.  A.  1885).  31  Ch.  D.  177;  55  L.  J. 
Ch.  241. 

In  Gravenor  v.  Stevens  (1697),  10  Mod.  166,  it  was  laid  down  as  a 
general  rule  that  where  a  fact  could  have  been  pleaded  in  abatement, 
it  could  not  be  assigned  for  error  in  fact  upon  a  writ  of  error.  Where 
in  an  action  on  a  bill  of  exchange  it  was  pleaded  in  abatement  that 
the  promise  was  made  by  A.  &  B.  jointly  with  the  defendant,  a  replica 
tion  to  the  effect  that  A.  &  B.  were  in  Scotland  at  the  commenceme  it 


SECT.  II. — JOINDER    OF   DEFENDANTS.  171 


No.  2.  —  Boulston  v.  Sandiford.  —  Notes. 


of  the  action,  and  had  no  property  within  the  jurisdiction  of  the  court, 
was  held  bad,  because  the  plaintiff  might  have  proceeded  to  outlawry 
against  them.  Sheppard  v.  Baillie  (K.  B.  1795),  6  T.  R.  .">27.  But 
see  modern  practice,  infra. 

In  an  action  against  A.  on  joint  promises  by  A.,  &  B.  who  is  an  out- 
law, a  plea  by  defendant  that  there  is  no  record  of  outlawry  against  I>. 
was  considered  to  be  in  effect  a  plea  in  abatement  ;  and  such  a  plea 
when  pleaded  in  bar  was  on  demurrer  held  to  be  bad.  Nowlan  v.  Geddes 
(1801),  1  East.  634. 

Where  there  are  several  partners  who  are  living  (liable  on  a  contract), 
one  of  them  may  be  declared  against  as  the  sole  debtor;  and  the  only 
objection  to  this  mode  of  declaring  is,  that  the  plaintiff  is  liable  to 
be  turned  round  by  a  plea  in  abatement.  But,  where  the  other  part- 
ner is  dead,  there  is  no  room  for  the  plea  in  abatement;  and  the  action 
lies  against  the  survivor  on  the  joint  debt  as  if  it  had  been  a  separate 
debt.      Richards  v.  Heather  (1817),  1  B.  &  Aid.  29,  per  Lord  Ellen- 

BO ROUGH,   33. 

As  to  obligees  by  bond,  the  law  was  laid  down  per  Curiam  in 
Whelpdale's  Case  (1604),  5  Co.  Rep.  119  A,  as  follows:  " Where  two 
are  jointly  bound  in  a  bond,  although  neither  of  them  is  bound  by 
himself,  yet  neither  of  them  can  say  that  the  bond  is  not  his  deed,  for 
he  has  sealed  and  delivered  it,  and  each  of  them  is  bound  for  the  whole. 
And  therefore,  if  they  are  both  sued,  and  one  appears  and  the  other 
makes  default,  and  by  process  of  law  is  outlawed,  he  who  appears  should 
be  charged  for  the  whole,"  and  for  this  authorities  are  cited  from 
40  &  41  Eliz.  It  was  therefore  —  the  action  being  an  action  for  debt 
on  a  bill  obligatory  —  resolved  that  the  defendant  might  have  pleaded 
in  abatement  of  the  writ,  but  cannot  plead  non  est  factum. 

So  in  Cabell  v.  Vaugham  (1669),  1  Saund.  291;  1  Sid.  420  (s.  n. 
Chap-pel  v.  Vaugham),  1  Vent.  34,  2  Keb.  525,  528,  it  was  held  that 
where  A.  is  sued  alone  upon  a  bond  containing  a  joint  obligation  by 
A.  &  B.  it  is  a  good  plea  in  abatement  that  B.  sealed  the  bond  and  is 
alive. 

It  will  be  observed  that  in  the  principal  case  of  Boulston  v.  Sandiford 
an  attempt  was  made  to  distinguish  Wlielj>dale,s  case,  on  the  ground  that 
it  was  the  case  of  a  bond  and  not  a  simple  contract.  But  it  now  appears 
clear  that  if  the  early  authorities  which  were  referred  to  in  Abbott  v. 
Smith,  2  Bl.  247,  250,  251,  had  been  looked  at,  this  distinction  could  not 
have  been  maintained.  The  only  difference  upon  the  point  in  question, 
between  a  bond  and  a  simple  contract,  appears  to  be  that  if  a  bond  is 
expressly  made,  as  regards  the  persons  bound,  joint  and  several,  it  will 
be  in  effect  joint  and  several  as  to  them.  And  so:  "If  three  be  bound 
jointly  and  severally  in  a  bond,    the  obligee  cannot  sue  two  of  them 


172  ABATEMENT.' 


No.  2.  —  Boulston  v.  Sandiford.  —  Notes. 


only,  but  he  must  either  sue  them  all  or  each  of  them  separately."  Per 
Puller,  J.,  Stratfleld  v.  Halliday  (1790),  3  T.  P.  779. 

A  scire  facias  against  two  defendants  on  a  joint  and  several  recogniz- 
ance of  four  persons,  without  averring  the  other  two  to  be  dead,  was 
held  bad.  It  was  argued  that  on  a  joint  and  several  recognizance  the 
Crown  might  proceed  against  all  jointly,  or  against  each  separately; 
but  not  against  two  out  of  four.  It  was  further  argued  that  a  plea  in 
abatement  was  not  necessary  in  this  case,  as  in  the  case  of  a  bond  ;  for  a 
bond  might  purport  to  be  made  by  four  persons  though  only  executed  by 
three,  and  therefore  it  was  necessary  to  put  on  record  the  fact  of  execu- 
tion by  all  four;  but  a  recognizance  is  conclusive  evidence;  and  these 
arguments  were  in  effect  held  good.  R.  v.  Yuan;/  and  Glennie  (Ex. 
1794),  2  Anstr.  448. 

When  a  bond  is  joint  and  several,  a  discharge  of  one  by  the  obligee 
has  the  effect  of  releasing  both;  and  so  if  the  obligee  makes  one  of  the 
obligors  his  executor  the  other  is  discharged.  Cheetham  v.  Ward 
(1797),  1  Pos.  &  Pul.  630.  Re  Wolmershaussen  (Ch.  I).  1890),  62 
L.  T.  541.  Put  this  does  not  apply  to  a  judgment  recovered  against  one 
of  several  joint  and  several  debtors.  l3er  Stirling,  J.,  in  Blijth  v. 
Fladgate  (Ch.  D.  1890),  1  Ch.  337,  353;  63  L.  T.  546,  533. 

CHANGE    IN    THE    PRACTICE    AS    TO    JOINDER    OK    DEFENDANTS. 

Py  3  &  4  W.  4,  c.  42  (1833)  it  was  enacted  (s.  8)  as  follows:  "No 
plea  in  abatement  for  the  non-joinder  of  any  person  as  a  co-defendant 
shall  be  allowed  in  any  Court  of  Common  Law  unless  it  shall  lie  stated 
in  such  plea  that  such  person  is  resident  within  the  jurisdiction  of  the 
Court,  and  unless  the  place  of  residence  of  such  person  shall  be  stated 
with  convenient  certainty  in  an  affidavit  verifying  such  plea." 

And  by  the  same  statute  it  was  (by  s.  9)  enacted  to  the  effect  that 'to 
a  plea  in  abatement  for  non-joinder  of  another  person,  the  plaintiff  may 
reply  that  such  person  has  been  discharged  in  bankruptcy. 

Under  the  above  statute  it  was  (in  1847)  decided  by  the  Court  of 
Common  Pleas  that  if  the  defendant  cannot  give  the  plaintiff  the  means 
of  bringing  all  the  parties  before  the  court,  he  cannot  have  any  plea 
in  abatement  for  non-joinder  of  contractors.  It  was  observed  that  be- 
fore the  passing  of  the  act  the  inconvenience  was  that  unless  the  plain- 
tiff sued  all  the  parties  to  the  contract,  he  ran  the  risk  of  a  plea  of 
abatement  being  put  on  the  record;  and  if  he  did  sue  all.  and  one  was 
out  of  the  jurisdiction,  he  must  outlaw  him  before  he  could  proceed 
against  the  others.  The  defendant  in  a  [ilea  of  abatement  was  required 
to  allege  the  non-joinder  of  all  the  co-contractors,  it  being  his  duty  to 
give  the  plaintiff  a  better  writ.  The  statute  was  intended  to  relieve  the 
plaintiff  from  the  embarrassment,  but  not  to  relax  the  rules  of  pleading 


SECT.  II. — JOINDER    OF   DEFENDANTS.  173 

No.  2.  —  Boulston  v.  Sandiford.  —  Notes. 

in  favour  of  the  defendant.  J<>11  v.  Lord  Curzon  (C.  P.  1847),  4  C.  B. 
249,  16  L.  J.,  C.  P.  172. 

The  power  of  amendment  under  the  Common  Law  Procedure  Acts 
already  referred  to  (p.  172,  ante)  did  not  do  away  the  plea  of  abatement 
as  to  non-joinder  of  defendants,  though  they  simplified  the  procedure 
for  setting  the  record  right  in  case  of  such  a  plea  being  taken. 

The  procedure  under  the  Judicature  Acts  was  further  simplified 
through  the  abolition  of  pleas  of  abatement  as  above  mentioned  (p  IGo, 
ante),  and  by  the  wider  powers  of  amendment  as  to  parties  and  of  giv- 
ing judgment  against  one  or  more  of  the  defendants.  Orel.  1(3,  Rules  4, 
5,  6,  &c.  But,  as  the  following  ruling  case  shows,  the  old  rules  as  to 
abatement  are  still  of  great  importance  in  regard  to  the  question  as 
to  the  proper  parties  to  an  action,  and  the  effect  of  a  judgment  where 
defendants  who  might  have  been  joined  have  been  left  out. 

AMERICAN   NOTES. 

As  to  Contracts.  In  an  action  on  a  joint  contract,  it  was  early  held,  if  only 
one  of  the  contracting  parties  is  sued,  the  non-joinder  of  the  other  can  be 
taken  advantage  of  only  by  plea  in  abatement.  State  v.  Woram,  6  Hill  (Xew 
York),  33;  40  Am.  Dec.  378;  Lurlon  v.  Gilliam,  1  Scammon  (Illinois),  577; 
33  Am.  Dec.  130;  Fogg  v.  Virgin,  19  Maine,  352;  3(3  Am.  Dec.  757;  Nash  v. 
Skinner,  12  Vermont,  219 ;  36  Am.  Dec.  338  ;  Jones  v.  Pitcher,  3  Stewart  & 
Porter  (Alabama),  135;  21  Am.  Dec.  716.  In  the  latter  case  the  court 
observe  :  "  In  the  early  cases  in  England  it  was  held  that  where  the  action 
was  founded  on  contract,  all  the  proprietors  must  be  joined,  and  that  the 
non-joinder  need  not  be  pleaded  in  abatement,  but  was  a  good  ground  for 
nonsuit  at  the  trial:  Boson  v.  Sandford,  2  Show.  478;  3  Mod.  321.  But  it 
appears  that  this  latter  point  has  since  been  settled  differently  in  Rice  v. 
Shule,  5  Burr.  2611,  K.  B. ;  and  in  Abbot  v.  Smith,  2  W.  Bl.  947,  in  the  C. 
Pleas,  and  that  the  usual  practice  has  subsequently  been  to  require  the  non- 
joinder to  be  pleaded  in  abatement,  or  the  exception  will  be  waived.  This 
rule  of  practice  is  evidently  most  salutary ;  it  avoids  the  danger  of  defeat  in 
many  actions  for  the  same  cause,  and  for  the  want  of  information  very  often 
possessed  by  the  defendants  alone."  The  court  also  cite  and  comment  on 
G'ooetl  v.  Radnidge,  3  East,  62  ;  Powell  v.  Laglon,  5  B.  &  P.  365  ;  Max  v. 
Roberts,  12  East,  89,  and  Bretherlon  v.  Wood,  3  Brod.  &  B.  54.  In  Le  Page  v. 
McCrea,  1  Wendell  (Xew  York),  164;  19  Am.  Dec.  469,  it  was  held  that  the 
non-joinder  of  a  defendant  in  contract  is  matter  for  plea  in  abatement  : 
Robertson  v.  Smith,  18  Johnson  (New  York),  459;  9  Am.  Dec.  227;  Bank  of 
Rochester  v.  Monteath,  1  Denio  (New  York),  402;  43  Am.  Dec.  681.  This  rule 
is  also  supported  by  Stoneg  v.  M' Neil  I,  Harper  (So.  Carolina),  173;  Norton  v. 
Cook,  2  Watts  (Penn.),  40  ;  Moore  v.  Russell,  2  Bibb  (Kentucky),  443  ;  Brown 
v.  Warrant,  3  Har.  &  John.  (Maryland),  572  ;  Powers  v.  Spear,  3  New  Hamp- 
shire, 35;  Coffee  v.  Eastland,  Cooke  (Tennessee),  159;  M' Arthur  v.  Ladd,  5 
Ohio,  517;  Holyoke  v.  Loud,  69  Maine,  59;  Metcalfv.  Williams,  104  C.  S.  <):)-. 
Douglas  v.  Chapin,  26  Connecticut,  76 ;  Hine  v.  Houston,  2  Greene  (Iowa),  161  ; 


174  ABATEMENT. 


No.  2.  —  Boulston  v.  Sandif ord.  —  Notes. 


Smith  v.  Cooke,  31  Maryland,  ITT;  100  Am.  Dec.  58;  Porter  v.  Leache,  56 
Michigan,  40;  Maurer  v.  Miclay,  25  Nebraska,  575;  Means  v.  Milliken,  33 
Pennsylvania  State,  517  ;  Denis  v.  Willis,  47  Texas,  154;  Wilson  v.  McCormick, 
86  Virginia,  995;   SWtes  v.  Imnan,  55  Mississippi,  40!). 

••As  to  the  mode  of  taking  advantage  of  a  partnership  in  an  action  of 
assumpsit,  the  true  rule  is  this  :  If  one  of  two  partners  be  sued,  upon  a  part- 
nership demand,  he  must  plead  the  matter  in  abatement,  and  set  out  the 
names  of  the  partners,  so  that  the  plaintiff  may,  if  need  be,  sue  them  all 
together.  But  if  one  of  two  partners  brings  a  suit  upon  a  partnership 
demand,  the  defendant  may  take  advantage  of  it,  at  the  trial  of  the  cause,  for 
he  may  not  know,  until  it  comes  out  in  evidence,  that  the  fact  is  so."  Coffee 
v.  Eastland,  Cooke  (Tennessee  Federal  circuit  court),  159. 

'•This  has  always  been  the  prevailing  doctrine,"  says  Professor  Minor,  "in 
respect  to  the  action  of  covenant  and  of  debt,  even  on  simple  contracts;  but 
from  the  time  that,  under  the  sanction  of  Slade's  Case,  4  Co.,  93  a,  the  action 
of  trespass  on  the  case  in  assumpsit  came  into  common  use  as  a  concurrent 
remedy  with  debt  on  promises  to  pay  money,  not  under  seal,  it  was  long  the 
practice  in  that  action  to  prove  the  non-joinder  of  the  co-contractor  at  the 
trial,  upon  the  general  issue  of  non-assumpsit,  on  the  notion  that  a  variance  was 
thereby  established  between  the  declaration  and  the  proofs.  This  practice, 
however,  under  the  influence  of  Lord  Mansfield,  was  abandoned  in  Rice  v. 
Shute,  Burr.  2611,  a  case  which  was  followed  by  Abbot  v.  Smith,  2  Wm.  Bl. 
947,  and  has  ever  since  prevailed  in  England  and  America.  4  Minor  Inst. 
(2d  ed.)  marg.  p.  630  ;  Barry  v.  Foyles,  1  Peters,  311  ;  Metcalfv.  Williams,  104 
P.  S.  93;  Seymour  v.  Minturn,  17  Johnson,  109;  Williams  v.  Allen,  7  Cowen, 
310;  Henderson  v.  Hammond,  19  Alabama,  310;  1  Smith  Lead.  Cas.  (7th  Am. 
ed.),  873,  notes  to  Rice  v.  Shute." 

In  respect  to  the  form  of  action  against  carriers,  — 

Courts  are  inclined  to  consider  actions  against  carriers,  to  recover  damages 
for  private  injuries,  as  founded  in  tort,  unless  a  special  contract  very  clearly 
appears  to  be  made  the  gravamen  and  object  of  the  complaint.  JYeic  Orleans, 
fyc.  R.  Co.  v.  Hurst,  36  Mississippi.  000;  74  Am.  Dec.  785;  Hern  v.  M'- 
Caughan,  32  Mississippi,  17  ;  66  Am.  Dec.  592,  citing  Anscll  v.  Walerhouse,  0 
M.  &  S.  385;  Pozzi  v.  Shipton,  8  Add.  &  Ell.  963;  Baltimore  City,  frc.  Ry.  Co.  v. 
Kemp.  01  Maryland.  619;  48  Am.  Pep.  134,  citing  Bretherton  v.  Wood,  3  Brod. 
&  H.  54. 

In  Hawkins  v.  Hoffman,  0  Hill  (New  York),  580.  the  rule  is  thus  stated: 
-Trover  will  lie  where  the  goods  have  been  lost  to  the  owner  by  the  act  of 
the  carrier,  though  there  may  have  been  no  intentional  wrong;  as  where  the 
goods  are  by  mistake  or  under  a  forged  order  delivered  to  the  wrong  person  : 
Youl  v.  Harbollle,  Peake  ('as.  49";  Devereux  v.  Hare/ay,  2  Hani.  &  Aid.  702; 
Stephenson  v.  Hart,  4  Bing.  170;  Lubbock  v.  Inglis,  1  Stark.  83.  But  it  will 
not  lie  for  the  mere  omission  of  the  carrier;  as  where  the  property  has  been 
stolen  or  lost  through  his  negligence,  and  so  cannot  be  delivered  to  the  owner. 
The  remedy  in  such  cases  is  assumpsit,  or  a  special  action  on  the  case.  Anon., 
2  Salk.  055 ;  Ross  v.  Johnson,  5  Burr.  2825 :  and  see  Dewell  v.  Moron,  1 
Taunt.  391  ;  2  Saund.  47.  f.  ;  M'Combie  v.  Davies,  6  East.  538."  But  as  has 
been  said  before,  the  changes  wrought  l>y  the  codes  of  procedure  must  be 
borne  in  mind. 


SECT.  II. — JOINDER   OF    DEFENDANTS.  175 


No.  3.  — Kendall  v.  Hamilton. — Rule. 


No.  3.  —  KENDALL  v.  HAMILTON. 

(ii.  l.  1879.) 

rule. 

The  abolition  by  the  rules  under  the  Judicature  Acts  of 
pleadings  in  abatement  makes  no  difference  in  the  prin- 
ciple of  the  law  as  to  the  proper  parties  to  an  action. 

If  A.,  B.,  and  C,  are  jointly  liable  upon  a  contract,  and 
the  creditor  sues  A.  and  B.,  and  they  make  no  objection, 
the  creditor  may  recover  judgment  against  them.  But  he 
cannot  afterwards  sue  C.  in  respect  of  the  same  contract. 

The  plaintiffs  recovered  judgment  against  A.  and  B. 
in  an  action  against  them  for  money  advanced  under  a 
credit  arrangement,  entered  into  by  an  agreement  in  writ- 
ing between  the  plaintiffs  and  the  firm,  consisting  of  A. 
and  B.  Afterwards,  the  judgment  being  unsatisfied,  the 
plaintiffs  discovered  that  C.  was  interested  as  a  partner  in 
the  adventure  to  which  the  credit  related.  Held  that,  the 
contract  having  passed  into  a  judgment,  the  plaintiffs  could 
not  maintain  an  action  against  C.  for  the  amount  which 
remained  unsatisfied. 

So  adjudged  by  the  Lord  Chancellor  (Cairns),  Lord 
Hatherley,  Lord  O'Hagan,  and  Lord  Blackburn.  Dis- 
sentiente,  Lord  Penzance. 

Kendall  v.  Hamilton. 

4  App.  Cas.  504-54C,;  48  L.  J.,  C.  P.  705. 

The  following  judgment  of  Lord  Blackburn  states  the  case,  and 
substantially  expresses  the  ratio  decidendi  of  the  House:  — 

My  Lords,  in  this  case  the  plaintiffs  entered  into  transactions 
with  the  firm  of  Wilson,  McLay  &  Co.,  then  consisting  of  two  per- 
sons—  Matthew  Wilson  and  Joseph  Corrie  Shutters  McLay.  They, 
at  the  request  of  that  firm  and  in  consequence  of  contracts  made 
with  that  firm,  accepted  bills  and  entered  into  other  transactions, 
the  result  of  which  was  that  a  large  sum  was  owing  to  the  plaintiffs 


176  ABATEMENT. 


No.  3.  —  Kendall  v.  Hamilton. 


for  which  they  might  have  maintained  an  action  for  money  lent 
against  those  two  persons. 

The  plaintiffs  did  not,  at  the  time  when  they  entered  into  the 
contracts  which  resulted  in  this  cause  of  action,  know  that  any 
other  person  was  interested  in  the  contracts ;  they  dealt  with  Wil- 
son &  McLay,  and  with  them  alone,  and  gave  credit  to  them  alone. 
But  afterwards  (in  the  view  which  I  take  of  the  case,  it  is  imma- 
terial when)  the  plaintiffs  discovered  that  the  defendant  Hamilton 
had  agreed  to  share  with  Wilson  &  McLay  in  certain  adventures 
which  would  require  the  advance  of  money,  and  that  "the  financial 
arrangements  should  be  managed  "  by  Wilson  &  McLay. 

This  amounted  to  an  authority  to  Wilson  &  McLay  to  borrow 
money  for  the  joint  account  of  Wilson,  McLay  &  Hamilton,  who 
were  the  undisclosed  principals  of  Wilson  &  McLay  in  the  con- 
tract of  loan.  And  it  is,  I  think,  now  firmly  established  as  law, 
that  a  person  entering  into  a  contract  with  one  to  whom,  and  to 
whom  alone  he  trusted,  may,  on  discovering  that  the  contractor 
really  had  a  principal,  though  he  neither  trusted  to  him  nor  gave 
credit  to  him,  nor  even  knew  of  his  existence,  charge  that  principal 
unless  something  has  happened  to  prevent  his  doing  so.  He  is  not 
bound  to  do  so.  In  the  present  case,  Wilson  &  McLay  could  not, 
if  sued  before  the  -Judicature  Acts,  have  pleaded  in  abatement  the 
non-joinder  of  Hamilton;  nor  if  Wilson  &  McLay  had  sued  the 
plaintiffs,  could  they  have  resisted  a  set-off  of  the  money  lent  to 
them,  on  the  ground  that  in  borrowing  it  they  were  agents  for  a 
concealed  principal. 

I  will  first  consider  how  this  case  would  have  stood  at  law  before 
the  Judicature  Acts,  and  then  inquire  what  difference  these  Acts 
make.  I  take  it,  for  the  reasons  I  have  given,  to  be  clear  that, 
under  such  circumstances  as  exist  in  the  present  case,  the  new 
plaintiffs  might  have  maintained  an  action  for  money  lent-against 
Hamilton,  on  the  ground  that  he,  jointly  with  Wilson  &  McLay, 
being  undisclosed  principals  to  Wilson  &  McLay,  was,  as  such, 
liable  to  the  plaintiffs.  But  the  facts  are  such  that  Hamilton  could 
have  proved  a  plea  that  the  contract  on  which  he  was  sued  was 
made  by  the  plaintiffs  with  the  defendant  and  Wilson  &  McLay, 
jointly,  and  not  with  the  defendant  alone,  and  that  the  plaintiffs, 
before  action,  had  recovered  judgment  against  Wilson  &  McLay  for 
the  same  loan  upon  the  same  contract.  And  then  the  question 
would  have  arisen,  whether  a  judgment  recovered  against  one  or 


SECT.  II.  —  JOINDER   OF   DEFENDANTS.  177 

No.  3.  —  Kendall  v.  Hamilton. 

more  of  several  joint  contractors  was  (without  satisfaction)  a  bar 
to  an  action  against  another  joint  contractor  sued  alone.  The 
decision  in  King  v.  Hoare,  13  M.  &  W.  4(J4,  was  that  it  is  a  bar. 

I  have  already  said  that,  in  my  view  of  the  matter,  it  was  imma- 
terial when  the  plaintiffs  first  discovered  that  they  had  a  right  to 
have  this  recourse  against  Hamilton,  which  they  had  never  bar- 
gained for,  and  which  was  to  them  a  piece  of  pure  good  luck.  If 
the  principle  on  which  King  v.  Hoare,  supra,  was  decided  had  been 
that,  by  suing  some  he  had  elected  to  take  them  as  his  debtors  to 
the  exclusion  of  those  whom  he  had  not  joined  in  the  action,  it 
would  be  material ;  for  I  assent  to  the  argument  that  there  cannot 
be  election  until  there  is  knowledge  of  the  right  to  elect.  But 
King  v.  Hoare,  supra,  proceeded  on  the  ground  that,  the  judgment 
being  for  the  same  cause  of  action,  that  cause  of  action  was  gone. 
Transmit  in  rem  judicatam,  which  was  a  bar,  partly  on  positive 
decision,  and  partly  on  the  ground  of  public  policy,  that  there 
should  be  an  end  of  litigation,  and  that  there  should  not  be  a  vexa- 
tious succession  of  suits  for  the  same  cause  of  action.  The  basis  of 
the  judgment  was  that  an  action  against  one  on  a  joint  contract 
was  an  action  on  the  same  cause  of  action  as  that  in  an  action 
against  another  of  the  joint  contractors,  or  in  an  action  against  all 
the  joint  contractors  on  the  same  contract. 

From  very  early  times  it  was  the  law  that  a  contract  was  an 
entire  thing,  and  that,  therefore,  all  who  were  parties  to  the  con- 
tract must,  if  alive,  join  as  plaintiffs  and  must  be  joined  as  defend- 
ants. If  this  was  not  done  there  must  be  a  plea  in  abatement 
(Com.  Dig.  Abatement,  E.  12,  F.  8).  That  very  learned  lawyer 
cites  7  Hen.  4,  6,  and  20  Hen.  6,  11,  as  authorities  for  this,  and 
probably  earlier  authorities  might  be  found,  but  I  think  it  unne- 
cessary to  search  for  them,  as  it  has  never,  as  far  as  I  know,  been 
doubted  that  the  defendant  might  plead  the  non-joinder  of  his  joint 
contractors  in  abatement,  and  in  that  way  compel  the  plaintiff  to 
join  as  defendants  all  who  were  parties  to  the  joint  contract  and 
were  still  alive.  But  there  was  long  a  controversy  as  to  whether 
the  plea  in  abatement  was  the  only  way  in  which  the  objection 
could  be  raised.  If  on  the  evidence  it  was  proved  that  the  contract 
was  joint,  it  was  thought  that  there  was  a  variance  between  the 
proof  of  a  joint  contract  with  the  parties  to  the  action,  and  some 
one  not  a  party  to  the  action  and  still  alive,  and  the  allegation  m 
the  declaration  which,  it  was  thought,  must  be  taken  to  be  an  allega- 
vol.  i.  — 12 


178  ABATEMENT. 


No.  3.  —  Kendall  v.  Hamilton. 


tion  of  a  contract  between  the  parties  to  the  action  and  no  others, 
and  consequently  that  there  should  be  a  nonsuit  or  verdict  for  the 
defendant  on  the  ground  of  variance.  This,  it  has  now  been  settled, 
is  the  law  in  cases  where  the  objection  is  the  non-joinder  of  a  plain- 
tiff; and  consequently  the  non-joinder  of  a  co-contractor  as  plaintiff 
was  never  in  modern  times  pleaded  in  abatement.'  And  it  was  long 
thought  by  many  that  the  same  course  was  open  to  a  defendant. 
Such  was  the  decision  of  Lord  Holt  and  the  Court  of  King's  Bench 
in  Boson  v.  Sandford,  2  Salk.  440.  My  Lords,  I  need  hardly  point 
out  that  if  this  had  been  still  followed  as  law,  it  would  have  made 
it  clear  that  the  cause  of  action  against  the  one  was  the  same  as 
that  against  all ;  or  rather  that  there  was  no  cause  of  action  at  all 
against  the  one  alone,  and  never  could  be  judgment  against  one 
alone ;  and  so  the  point  could  never  have  risen.  But  it  was  estab- 
lished by  a  series  of  cases,  which  may  be  found  collected  in  Serjeant 
Williams'  note  to  Cabell  v.  Vaughan,  1  AVms.  Saund.  290  a,  that 
though  all  the  joint  contractors  must  be  joined  as  co-defendants, 
the  only  way  of  taking  advantage  of  the  non-joinder  was  by  a  plea 
in  abatement.  The  first  case  in  which  I  find  this  decided,  was  Bice 
v.  Shute,  5  Burr.  2611.  The  last  in  which  I  find  it  controverted, 
though  unsuccessfully,  was  Evans  v.  Lewis,  1  Wins.  Saund.  291  (d); 
Bayley  on  Bills,  381,1  in  1794.  But  though  the  mode  of  enforcing 
the  joinder  of  all  was  thus  cut  down,  it  still  remained  the  law  that 
all  ought  to  be  joined.  And  consequently  I  cannot  doubt  that  the 
Judges  in  King  v.  Hoare,  13  M.  &  W.  494,  were  accurate  in  holding 
that  the  two  actions  were  upon  the  same  cause  of  action.  I  cannot 
agree  in  what  seems  to  be  the  opinion  of  the  noble  and  learned 
Lord  on  my  left  (Lord  Penzance)  that  the  Judicature  Act  has  taken 
away  the  right  of  the  joint  contractor  to  have  the  other  joint  con- 
tractors joined  as  defendants,  or  made  it  a  mere  matter  of  discretion 
in  the  court  to  permit  it.  With  great  deference  I  think  that  the 
right  remains,  though  the  mode  of  enforcing  it  is  changed. 

I  do  not  think  the  defence  a  meritorious  one;  but  I  think  in  the 
present  case  there  is  no  great  hardship.  The  plaintiffs  had  a  right 
of  recourse  against  Hamilton,  for  which  they  never  bargained;  but 
they  did  nothing  inequitable  in  taking  advantage  of  that  which 
the  law  gave  them.  They  have  destroyed  that  remedy  by  taking 
a  judgment  against  persons  who  turn  out  to  be  insolvent.  I  do 
not  see  that  Hamilton  does  anything  inequitable  in  taking  advan- 
1  See  also  Lord  Ellenborocgh,  in  Mountstephen  v.  Brooke,  1  B.  &  Aid.  226. 


SECT.  II. — JOINDER    OF    DEFENDANTS.  179 


No.  3.  —  Kendall  v.  Hamilton. 


tage  of  the  defence  which  the  law  gives  him.     The  plaintiffs  got  a 

right  by  operation  of  law,  without  any  merits  of  their  own,  by  what, 
.as  far  as  regards  them,  was  pure  good  luck.  They  have  lost  it  by 
what  was  no  fault  of  theirs,  but  was,  as  far  as  they  were  concerned, 
pure  bad  luck.  If  the  plaintiffs  were  willing  to  take  advantage  of 
their  good  luck  against  the  defendant,  it  seems  no  hardship  that 
lie  should  take  advantage  of  their  bad  luck  against  them. 

But  in  such  a  case  as  King  v.  Hoare,  13  M.  &  W.  494,  where  the 
plaintiff  had  contracted  with  the  provisional  committee  of  a  com- 
pany, and  consequently  was  very  uncertain  how  many  were  joint 
•contractors,  it  did  operate  harshly.  He  dared  not  join  many  in  the 
first  action,  for,  as  the  law  then  stood,  if  he  failed  as  to  any  one  he 
failed  as  to  all;  and  it  does  seem  hard  that  a  judgment  obtained 
under  such  circumstances  against  one  should  be  without  satisfaction 
a  bar  as  to  all  the  others.  This  hardship  is  very  much  removed  by 
the  provisions  of  the  existing  law,  by  which  the  plaintiff  recovers 
judgment  against  those  whom  he  proves  to  be  his  debtors,  though 
he  has  joined  others  as  defendants ;  he  has  only  to  pay  the  costs  of 
those  improperly  joined.  But  I  think  that  the  hardness  of  the 
law,  even  if  it  exist,  is  a  reason  for  altering  it,  not  for  refusing  to 
act  upon  it ;  and  I  think  no  doubt  has  ever  been  expressed,  unless 
perhaps  in  Ex  parte  Waterfall,  4  De  G.  &  Sm.  199,  that  King  v. 
Hoare,  13  M.  &  W.  494,  does  truly  state  the  law  as  it  existed  before 
the  Judicature  Acts,  and  it  was  not  doubted  in  the  courts  below, 
or  I  think  seriously  questioned  at  the  bar,  that  it  did  so. 

But  since  the  Judicature  Act,  1873,  §  24,  law  and  equity  are  to 
be  concurrently  administered.  And,  therefore,  if  before  the  passing 
of  those  Acts  the  plaintiffs  could  have  sued  in  equity  on  these  facts, 
or  if  they  could  have  successfully  applied  for  an  injunction  to  pre- 
vent the  defendant  from  pleading  tins  defence,  they  may  raise  the 
same  point  in  this  suit  in  the  Common  Pleas  division.  But  the 
Judicature  Acts  do  not  create  any  equity  applicable  to  this  case 
which  did  not  exist  before.  They  only  enable  the  court  to  admin- 
ister the  equities  already  existing  without  the  delay  and  expense 
formerly  required. 

On  the  first  argument  at  your  Lordships'  bar,  Mr.  Bighy,  in  a 
very  excellent  argument,  convinced  me  that  in  cases  of  joint  con- 
tracts there  was  no  difference  between  law  and  equity,  except  in 
the  single  case  of  the  death  of  one.  of  the  parties  to  a  joint  contract, 
where  the  contract  was  such  that  the  maxim  inter  mcrcatores  jus 


180  ABATEMENT. 


No.  3.  —  Kendall  v.  Hamilton.  —  Notes. 


accrescendi  locum  non  habet  applied  ;  but  I  was  diffident  of  my  opin- 
ion on  a  question  of  such  pure,  and  I  might  say,  technical  equity  ; 
and  was  therefore  very  willing  that  the  case  should  be  re-argued. 

I  have  now  heard  the  opinion  of  the  noble  and  learned  Lords 
who  are  conversant  with  the  proceedings  in  the  courts  of  equity, 
and  have  no  diffidence  in  saying  that  I  am  of  the  same  opinion. 

ENGLISH   NOTES. 

The  decision  of  the  House  of  Lords  in  Kendall  v.  Hamilton  has  put 
an  end  to  the  authority  of  Lord  Mansfielb's  dictum  in  A* ice  v.  Sit  ate 
(p.  170,  ante)  that  "contracts .with  partners  are  joint  and  several,"  and 
shows  that  while  the  partners  are  alive  their  liability  upon  the  part- 
nership contracts  is  joint  only.  But  the  reason  given  for  the  decision 
likewise  shows  that,  although  the  partners  are  not,  as  such,  jointly  and 
severally  liable,  there  arises  in  equity  oil. the  death  of  a  partner  a  several 
liability  of  bis  estate  for  the  partnership  debts.  And  it  has  been  decided 
by  the  Court  of  Appeal  that  a  judgment  recovered  in  an  action  against 
the  surviving  partner  is  no  bar  to  a  claim  against  the  estate  of  the 
deceased  partner  for  the  same  debt;  nor  is  a  claim  carried  in  and  proved 
against  such  estate  any  bar  to  an  action  against  the  surviving  partner. 
In  re  Hodgson,  Beckett  v.  Ramsdale  (C.  A.  1885),  31  Ch.  D.  177,  55 
L.  J.  Ch.  241. 

Lord  Penzance  in  his  dissenting  judgment  in  the  last  cited  case  tried 
to  minimise  the  weight  of  the  judgment  delivered  by  Baron  Parke  in 
King  v.  Hoare,  and  set  up  against  it  the  dictum  of  Lord  Mansfield  in 
Hice  v.  Shute.  But  the  result  of  the  judgment  of  the  House  is  to 
establish  conclusively  the  authority  of  the  judgment  in  King  v.  Hoare. 

King  v.  Hoare  <T844),  13  M.  &  W.  494,  was  an  action  of  debt  for 
goods  sold  and  delivered.  It  was  pleaded  (in  bar  of  action)  that  the 
goods  were  sold  and  delivered  to  the  defendant  11.  jointly  with  S. ;  that 
the  price  became  due  from  H.  and  S.  jointly,  and  that  the  plaintiffs 
had  recovered  judgment  for  the  debt  in  an  action  against  S.  This  was 
demurred  to,  and  after  argument  on  the  demurrer,  the  judgment  of  the 
court  was  delivered  by  Parke,  B.  He  said  the  question  of  substance 
was,  "Whether  a  judgment  recovered  against  one  of  two  joint  contractors 
is  a  bar  in  an  action  against  another."  He  showed  that  where  one  has 
a  cause  of  action  against  another  and  judgment  is  recovered  in  a  court 
of  record,  the  judgment  is  a  bar  to  the  original  cause  of  .action.  Transit 
in  rem  judicatam.  This  is  true  where  there  is  but  one  cause  of  action. 
whether  it  be  against  a  single  person  or  many.  The  judgment  of  a 
court  of  record  changes  the  nature  of  that  cause  of  action,  and  prevents 
it  being  the  subject  of  another  suit,  and  the  cause  of  action,  being  sin- 


SECT.    II. — JOINDER    OF    DEFENDANTS.  181 


No.  3.  —  Kendall  v.  Hamilton.  —  Notes. 


gle,  cannot  afterwards  be  divided  into  two.  Tims  it  has  been  held,  that 
if  two  commit  a  joint  tort,  the  judgment  against  one  is.  of  itself,  with- 
out execution,  a  sufficient  bar  to  the  action  against  the  other  for  the 
same  cause:  Brown  v.  Wootton,  Yelv.  (17.  .  .  .  We  do  not  think  that 
the  case  of  a  joint  contract  can,  in  this  respect,  be  distinguished  from 
a  joint  tort.  There  is  but  one  cause  of  action  in  each  case.  The  party 
injured  ma}-  sue  all  the  joint  tort-feasors  or  contractors,  or  he  may  sue 
one,  subject  to  the  right  of  pleading  in  abatement  in  the  one  case  and 
not  in  the  other;  but  for  the  purpose  of  this  decision  they  stand  on  the 
same  footing.  Whether  the  action  is  brought  against  one  or  two,  it  is 
for  the  same  cause  of  action.  The  distinction  between  the  case  of  a  joint 
and  several  contract  is  very  clear.  It  is  argued  that  each  party  to  a  joint 
contract  is  severally  liable,  and  so  he  is  in  one  sense,  —  that  if  sued  sev- 
erally and  he  does  not  plead  in  abatement,  he  is  liable  to  pay  the  entire 
debt;  but  he  is  not  severally  liable  in  the  same  sense  as  he  is  on  a  joint 
and  several  bond,  which  instrument,  though  on  one  piece  of  parchment 
or  paper,  in  effect  comprises  the  joint  bond  of  all,  and  the  several  bonds 
of  each  of  the  obligors,  and  gives  different  remedies  to  the  obligee." 

In  an  action  for  damages  to  cargo  brought  against  three  persons  as 
owners  of  the  ship,  an  application  was  made  (under  Ord.  XVI.  R.  11,  of 
the  Rules  of  the  Supreme  Court,  1883)  by  the  defendants  to  have  three 
other  persons,  alleged  to  be  part-owners,  added  as  defendants,  it  was 
held,  by  a  divisional  court,  —  Lord  (Jolekidge,  C.  J.,  and  Hawkins,  J., 
—  notwithstanding  the  dicta  of  Lord  Blackburn-,  p.  179,  supra,  that 
the  court  had  a  discretion  under  the  rules  ;  and  as  the  court  thought 
that  the  omission  of  these  defendants  would  not  prevent  them  from 
effectually  doing  justice,  they  refused  the  application.  Leduc  v.  Ward 
(Q.  B.  D.  1886),  54  L.  T.  214. 

An  action  is  brought  against  A.  and  B.  charging  them  as  joint  ac- 
ceptors of  a  bill.  The  action  is  abandoned  against  A.,  and  judgment 
signed  against  B.  A.  is  discharged;  and  that  discharge  is  not  affected 
by  the  plaintiffs  having  obtained  with  defendants'  consent  an  order  to 
set  aside  the  judgment.  Per  Hawkins,  J.,  in  Ode//  v.  Cormack  (1887), 
19  Q.  B.  D.  223,  228.  The  decision  of  this  point  was  not  necessarv  to 
the  judgment  in  Ode//  v.  Cormack,  but  in  1891,  a  similar  point  came 
before  a  divisional  court  of  the  Queen's  Bench  Division.  The  plaintiff, 
a  firm  of  printers,  had  sued  the  defendants  for  the  cost  of  printing  a 
newspaper  of  which  they  supposed  him  to  lie  sole  proprietor.  Final 
judgment  was  signed  by  consent,  and  subsequently  the  plaintiff  ascer- 
tained that  one  T.  was  a  partner  of  the  defendant.  The  plaintiffs  with 
consent  of  the  defendant  then  applied  that  the  judgment  should  be  set 
aside  and  the  writ  amended  by  adding  T.  as  a  defendant.  The  court 
held,  that  as  the  cause  of  action  was  gone  against  T.  they  had  no  juris- 


.182  ABATEMENT. 


No.  3.  —  Kendall  v.  Hamilton.  —  Notes. 


diction  to  make  the  order.  Hammond  v.  Schofield  (1891),  1  Q.  B.  453: 
60  L.  J.  Q.  B.  539. 

Plaintiff  sold  goods  to  a  firm  (A.  &  Co.)  consisting  of  A.  &  B.  The- 
partnership  was  dissolved,  and  subsequently  A.,  in  the  partnership  name 
(A.  &  Co.),  accepted  hills  drawn  by  plaintiff,  who  was  not  aware  of  the 
dissolution,  for  the  price.  The  plaintiff  sued  A.  &  Co.  as  a  firm  (under 
the  Judicature  Acts)  on  the  hills  and  recovered  judgment.  Held,  by 
Field  and  Manistv,  JJ.,  that  this  judgment,  which  was  only  a  judg- 
ment against  A.,  was  a  bar  to  the  plaintiff's  afterwards  suing  B.  on  the 
original  contract.  Cambefoot  v.  Chapman  (1887),  19  Q.  B.  D.  229; 
56  L.  J.  Q.  B.  639.  This  seems  to  he  stretching  the  authority  of 
Kendall  v.  Hamilton .  In  that  case  the  plaintiff  only  failed  to  fix  the 
liability  on  a  person  on  whose  credit  he  did  not  bargain.  The  effect  of 
this  judgment  of  Field  and  Manistv,  JJ.,  was  to  release  a  person 
on  whose  credit  the  plaintiff  did  bargain,  and  whom  he  throughout 
intended  to  hold  liable.  But  the  case  is  at  least  a  good  authority  for 
the  proposition  that  an  unsatisfied  judgment  against  one  joint  contractor 
on  a  bill  of  exchange  given  by  him  alone  for  the  joint  debt,  is  a  liar  to 
an  action  against  the  Other  joint  contractor  on  the  original  contract. 

It  follows  from  Kendall  v.  Hamilton  that  a  defendant  is  entitled  to 
an  order  under  the  Judicature  rules  for  the  joinder  as  defendant  of  a 
person  who  has  contracted  jointly  with  him.  Pllleij  v.  Robinson  (1887)r 
20  Q.  B.  D.  155;  59  L.  J.  Q.  B.  54. 


AMERICAN    NOTES. 

There  are  in  the  American  codes  provisions  for  summoning  one  joint  debtor 
on  contract  to  be  bound  by  a  judgment  obtained  against  his  co-debtors,  where 
he  was  not  served  with  process.  But  the  doctrine  of  the  principal  case  pre- 
vails in  the  United  States.  The  latest  writer  on  judgments.  Mr.  Black,  says 
(2  Judgments,  §  770.  a.  d.  1891):  "In  one  of  the  early  decisions  of  the 
United  States  Supreme  Court,  the  position  was  taken  by  Chief  Justice  Mar- 
shall, that  a  recovery  in  an  action  against  one  of  the  obligors  on  a  joint  bond, 
without  satisfaction,  was  no  bar  to  a  subsequent  action  against  a  co-obligor. 
Sheehy  v.  Mandeville,  <>  Cranch,  253.  But  this  ruling  has  been  much  criti- 
cised, and  although  the  case  may  never  have  been  explicitly  overruled,  yet 
the  doctrine  which  it  announced  has  been  completely  abandoned  by  that 
court,  and  the  latest  utterances  of  the  same  tribunal  have  sanctioned  an 
exactly  opposite  view.  Mason  v.  Eldred,  <>  Wallace,  231  ;  Sessions  v.  Johnson. 
95  U.  S.  347;  United  States  v.  Ames,  100  U.  S.  35:  Ferrall  v.  Bradford,  2 
Florida.  508  ;  50  Am.  Dec.  293.  The  opinion  that  such  a  judgment  does 
not  merge  the  cause  of  action  against  the  other  co-obligor  appears  to  be  still 
adhered  to  in  one  of  the  States.  Collins  v.  Lemasters,  1  Bailey  Law  (So. 
Carolina),  348  ;  21  Am.  Dec.  409;  Union  Bank  v.  Hodges,  11  Richardson  Law 
(So.  Carolina).  480.     But  this  stands  as  an  exception  to  the  universal  con- 


SECT.  II.  —  JOINDER   OF   DEFENDANTS.  183 

No.  4.  —  Mitchell  v.  Tarbutt.  —Rule. 

sensus  of  opinion  in  England  and  America,  and  the  rule  is  now  established, 
by  nothing  less  than  a  multitude  of  authorities,  that  when-  the  contract  or 
obligation  sued  on  is  joint,  a  recovery  against  one  of  the  joint  contractor- 
merges  the  entire  cause  of  action  and  bars  any  subsequent  suit  on  the  same 
obligation  against  the  other  debtors  or  any  of  them."  Citing  the  principal 
case  and  King  v.  Hoare,  13  Mees.  &  W.  494.  This  doctrine  is  supported-by 
Trafion  v.  United  Stales,  3  Story  (U.  S.  Circ.  Ct.),  646;  Ward  v.  Johnson, 
13  Massachusetts,  148;  Suydam  v.  Barber,  18  New  York.  468;  7">  Am.  Dec. 
•2.14;  Smith  v.  Black,  9  Sergeant  &  Rawle  (Penn.),  142;  11  Am.  Dec.  686; 
Moale  v.  Hollins,  11  (iill  &  Johnson  (Maryland),  11 ;  33  Am.  Dec.  684;  Brown 
v.  Johnson,  13  Grattan  (Virginia),  b44 ;  Elliot  v.  Purler,  .">  Dana  (Kentucky). 
299  ;  30  Am.  Dec.  689  ;  Clinton  Bank  v.  Hart,  5  Ohio  St.  33 :  Wilson  v.  Buell, 
117  Ind.  315;  People  v.  Harrison,  82  Illinois,  S4  ;  Bones/eel  v.  Todd,  9  Michi- 
gan, 371  ;  SO  Am.  Dec.  90;  Lauer  v.  Bandow,  48  Wisconsin,  638.  "  A  sepa- 
rate judgment  taken  against  one  of  several  joint  makers  of  a  note,  in  a  suit 
to  which  the  others  are  not  parties,  or  in  which  steps  are  not  taken  to  pre- 
serve the  right  to  a  subsequent  judgment  against  such  others,  may  be  pleaded 
as  a  bar  to  a  subsequent  suit  against  those  not  included  in  the  first  suit  or 
judgment."     Kennard  v.  Carter,  64  Indiana,  31. 

The  precise  point  of  the  principal  case  is  approved  in  Dill  v.  White,  52  Wis- 
consin, 456,  where  after  speaking  of  the  "statute  enacted  to  give  the  plaintiff 
a  remedy  in  such  a  case  against  the  joint  debtor  not  served,"  the  court 
observed:  "It  does  not  give  an  action  on  the  original  joint  obligation, 
because  that  is  merged  in  the  judgment  against  the  joint  debtor  or  debtors 
served  with  process ;  but  it  gives  a  proceeding  in  the  nature  of  scire  facias 
against  the  joint  debtor  not  served,  which  may  result  in  holding  him  bound 
by  the  judgment  in  the  same  manner  as  if  he  had  been  originally  sum- 
moned." See  also  Yoho  v.  Mc Govern,  42  Ohio  St.  11;  Erwin  v.  Scotlen.  10 
Indiana,  389. 

No.  4. —  MITCHELL  v.   TARBUTT. 
(k.  b.  1794.) 

RULE. 

Where  the  ground  of  action  is  a  pure  tort,  the  defendant 
cannot  set  up,  either  by  plea  in  abatement,  or  otherwise, 
that  others  were  joint  wrong-doers. 

Mitchell  v.  Tarbutt. 

5  T.  R.  649  (also  2  R.  R.  684). 

This  was  an  action  on  the  case  for  negligence,  wherein  tin- 
declaration  stated,  That  whereas  one  J.  Jones  and  one  G.  Hol- 
land, at  the  time  of  committing  the  grievance  thereinafter  men- 
tioned, were  possessed  of  a  certain  ship  called  the  Albion,  which 


184  ABATEMENT. 


No.  4.  —  Mitchell  v.  Tarbutt. 


was  then  proceeding  on  a  voyage  from  Jamaica  to  Bristol,  and 
that  there  were  then  on  board  the  said  ship  600  hds.  of  sugar 
belonging  to  the  plaintiff;  and  that  whereas  the  said  G.  Tarbutt, 
N.  A.,  J.  H.,  I).  T.,  and  J.  E.  (the  defendants),  were  at  the  time 
when,  &c,  possessed  of  a  ship  called  the  Amity  Hall,  whereof 
one  G.  Young  was  then  master,  then  also  sailing  on  the  high  seas, 
and  the  said  G.  Young,  their  servant  in  that  behalf,  then  and  there 
had  the  management  of  the  said  ship  Amity  Hall  ;  yet,  that  the 
defendants,  by  their  said  servant,  so  negligently  navigated  their 
ship  that  the  said  ship,  by  the  negligence  of  their  servant,  with 
great  force  struck  against  the  said  ship  of  Jones  and  Bolland,  then 
sailing  with  the  plaintiff's  goods  on  board,  and  so  damaged  the 
goods  that  they  were  wholly  lost  to  the  plaintiff.  To  this  the 
defendants  pleaded  in  abatement,  that  the  grievance  (if  any)  was 
committed  by  the  defendants,  and  one  A.  Shakespear,  C.  Bryan,  8. 
Orr,  and  J.  Neuffville  jointly,  and  not  by  the  defendants  only.  To 
which  there  was  a  general  demurrer,  and  joinder. 

Giles,  in  support  of  the  demurrer,  was  stopped  by  the  court. 

Wood,  contra.  If  the  declaration  had  charged  a  personal  tort 
on  the  defendants  themselves,  the  demurrer  to  the  plea  might 
have  been  sustained,  because  it  might  -have  been  said  to  have  been 
the  separate  trespass  of  each  of  the  parties ;  but  the  injury  is 
expressly  alleged  to  have  happened  by  the  act  of  their  servant,  in 
which  case  one  of  the  parties  cannot  be  answerable  more  than 
another.  And  that  is  the  distinction  between  trespass  and  case  : 
in  the  former  each  person  to  whom  the  act  is  referable  is  liable, 
but  in  case  all  the  parties  who  are  answerable  should  be  sued 
jointly ;  especially  where,  as  in  the  present  instance,  the  act  com- 
plained of  is  not  done  by  themselves  personally.  The  liability  of 
the  defendants  arises  from  their  being  partners  of  the  ship,  and 
jointly  responsible  for  the  acts  of  their  servants:  and  as  they 
could  not  have  sued  alone  for  any  damage  done  to  their  own 
vessel  under  these  circumstances,  so  neither  ought  they  to  be 
severally  answerable  for  the  acts  of  others.  In  Boson  v.  Sandford, 
Skin.  278,1  which  was  an  action  upon  the  case  in  which  the  plain- 
tiff declared  against  the  defendants  as  owners  of  a  bark  in  which 
his  goods  were,  and  showed  that  they  were  damaged  by  negligence ; 
on  a  special  verdict  found,  it  was  adjudged  by  Holt,  C.  J.,  Gregory, 
and  Eyres,  that  this  was  a  good  defence,  even  on  not  guilty  pleaded ; 
1    Vide  No.  2.  —  Bouhton  v.  Sandiford,  p.  166  supr. 


SECT.  II.  —  JOINDER   OF   DEFENDANTS.  185 

No.  4.  —  Mitchell  v.  Tarbutt. 

but  Dolben  thought  tbat  it  should  have  been  pleaded  in  abatement. 
The  difference  of  opinion,  therefore,  Was  only  as  to  the  mode  in 
which  the  defendant  should  take  advantage  of  the  objection  ;  for 
all  the  court  agreed,  that  he  was  entitled  to  avail  himself  of  it  in 
some  shape  or  other.  And  to  that  difference  must  be  referred 
the  distinction  which  was  taken  between  actions  arising  ex  con- 
tractu et  ex  delicto.  But  that  such  a  plea  in  abatement  may  be 
pleaded  even  to  actions  on  the  case  in  tort,  appears  from  a  case  as 
far  back  as  the  Year  Books.  7  Hen.  IV.  8.1  A  man  brought  a  writ 
of  trespass  on  the  case  against  the  abbot  of  Stratford,  and  counted 
that  he  held  certain  land  in  the  vill,  by  reason  whereof  he  ought 
to  repair  a  wall  on  the  bank  of  the  Thames  ;  that  plaintiff  had 
lands  adjoining,  and  that  for  default  of  reparation  of  the  wall,  his 
meadows  and  pastures  were  drowned  with  water.  To  which 
Skrene  says,  it  may  be  that  the  abbot  had  nothing  in  the  land,  by 
cause  whereof  he  should  be  charged  but  jointly  with  another ;  or 
otherwise,  that  the  plaintiff  had  nothing  in  the  land  which  was 
supposed  to  be  surrounded  with  water,  but  jointly  ;  in  which  case 
the  one  cannot  answer  without  the  other ;  nor  can  the  plaintiff  sue 
any  action  without  the  joint  feoffee.  Upon  the  whole,  though  this 
would  not  be  a  good  plea  to  an  action  of  trespass  vi  ct  armis,  or 
even  if  the  defendants  had  been  personally  charged  with  the 
act  which  occasioned  the  loss,  yet  to  an  action  on  the  case, 
where  they  are  only  charged  by  reason  of  their  relation  to  a  third 
person,  and  of  their  joint  property  in  the  ship,  the  plea  may  be 
maintained. 

Lord  Kenyon,  C.  J.  With  regard  to  the  last  case  cited,  there 
certainly  is  a  distinction  in  the  books  between  cases  respecting  real 
property  and  personal  actions :  where  there  is  any  dispute  about 
the  title  to  land,  all  the  parties  must  be  brought  before  the  court. 
But  upon  this  question  it  is  impossible  to  raise  a  doubt.  I  have 
seen  the  case  of  Boson  v.  Sandford,  in  the  different  books  in  which 
it  is  reported,  in  all  of  which  this  doctrine  is  clearly  established, 
that  if  the  cause  of  action  arise  ex  contractu,  the  plaintiff  must  sue 
all  the  contracting  parties  ;  but  where  it  arises  ex  delicto,  the  plain- 
tiff may  sue  all  or  any  of  the  parties,  upon  each  of  whom  individu- 
ally a  separate  trespass  attaches.     The  case  of  Boson  v.  Sandford, 

1   Vide    Bro.    Abr.    tit.   Joint   tenancy,     case  does  not  appear  to  have  been  decided 
pi.  12.  The  possession  of  Skrene  is  referred     on  that  ground, 
to.  as  one  which  was  not  denied  ;   but  the 


186  ABATEMENT. 


No.  4.  —  Mitchell  v.  Tarbutt.  —  Notes. 


was  treated  by  the  whole  court  as  an  action  for  a  breach  of  con- 
tract; there  indeed  it  was  also  determined  that  the  defendant 
might  take  advantage  of  the  objection,  that  all  the  contracting 
parties  were  not  sued,  on  the  plea  of  non  assumpsit,  but  that  being 
found  inconvenient,  a  contrary  doctrine  has  been  since  established.1 
But  this  being  an  action  ex  delicto,  the  trespass  is  several;  and  it 
is  immaterial  whether  the  tort  were  committed  by  the  defendant 
or  his  servant,  because  the  rule  applies,  qui  /"fit  per  alium,  facit 
per  se. 

Grose,  J.  The  same  distinction  between  the  actions  of  tort  and 
assumpsit  was  laid  down  in  Child  v.  Sand,  Carth.  294. 

Lawrence,  J.  In  Carth.  171,  it  was  held  that  an  action  for  a 
false  return  to  a  mandamus  was  founded  on  a  tort,  and  that  "  there- 
fore it  might  be  either  joint  or  several,  at  the  election  of  the  party, 
as  in  trespass,"  &c.  Judgment  for  plaintiff? 

ENGLISH   NOTES. 

In  an  action  on  the  case  against  certain  road-trustees  for  nuisance  by 
reason  of  their  works,  held,  after  verdict,  no  objection  that  others  who 
were  trustees  and  jointly  responsible  for  the  works  ought  to  have  been 
joined.     Sutton  v.  Clarke  (1815),  (5  Taunt.  29. 

Trust  funds  were  paid  pending  investment  to  the  account  of  a  firm  of 
solicitors,  A..  B.,  and  C.  By  the  instrumentality  of  A.,  who  was  the 
active  partner  in  the  matter,  the  funds  were  invested  on  insufficient 
security  in  the  names  of  A..  X.,  and  Y.  A..  X..  and  Y.  were  shortly 
afterwards  appointed  trustees  of  the  settlement.  In  an  action  by  a  bene- 
ficiary under  the  trust,  judgment  was  obtained  against  A..  X.  and  Y.. 
making  them  jointly  and  severally  liable.  Held,  that  this  judgment 
was  no  bar  to  an  action  by  the  same  plaintiff  against  15.  and  C.  to  make 
them  liable  for  negligence  as  solicitors  in  respect  of  the  improper  invest- 
ment. For  the  partners  were  implicated  in  the  breach  of  trust  which  was 
committed,  and  the  liability  thence  arising  being  ex  delicto  was  not 
joint  merely,  but  joint  and  several.  Blyth  v.  Fladgate  (1891),  1  Ch. 
:;:!7.  353;  ('><>  1..  J.  Ch.  66.  (Judgment  of  Stirling,  J.)  But  the 
claim  may  also  be  regarded  as  arising  ex  contractu,  and  therefore  sur- 
vived against  the  estate  of  a  deceased  partner.      lb.  p.  366. 

Actions  against  carriers  have  been  a  fertile  source  of  conflicting 
opinions. 

1    Vide    Rice    v.    Shute,    3    Burr.    2611:         -    Vide     Bristou-     v.    James,    7    T.     R. 
Abbot  v.  Smith,  ib  2614,  5;  and   Germaine     237. 
\.  Frederic,  Tr.  23  Geo.  III.  B.  IT 


SECT.  II. JOINDER    OF    DEFENDANTS.  187 


No.  4.  —  Mitchell  v.  Tarbutt.  —  Notes. 


Where  a  common  carrier  has  been  sued  on  what  was  called  the  custom 
•of  the  realm,  it  .seems  to  have  been  generally  considered  that  the  ground 
•of  action  was  a  tort.  If  he  did  not  deliver  the  goods  he  was  presumed 
to  have  converted  them  to  his  own  use,  and  was  sued  in  trover.  This 
presumption  had  doubtless  its  origin  in  a  rude  condition  of  the  country 
when  carriers  lay  under  the  suspicions  of  being  sometimes  in  collusion 
with  thieves  (compare  the  celebrated  text  of  the  Roman  law:  Nautae, 
Oaupones,  &c,  Dig.  IV.  9).  But  there  was  a  difficulty  in  framing  the 
declaration  so  as  not  to  infringe  the  general  rule  that  counts  tor  tort  and 
contract  could  not  lie  joined.  Eventually  in  the  case  of  Dickson  v. 
Clifton  (17(3(5),  2  Wils.  319,  common  sense  prevailed,  and  it  was  allowed, 
in  an  action  against  a  common  carrier,  to  join  a  count  in  trover  with  a 
count  stating  the  promise  to  give  due  care  in  the  carrying,  and  the 
breach  by  negligence. 

On  the  question,  whether  the  ground  of  action  in  the  ordinary  case  of 
loss  of  or  damage  to  goods  in  the  hands  of  a  common  carrier  is  essentially 
tort  or  contract,  there  has  been  a  conflict  of  opinion  which  has  not  been 
set  at  rest;  though  perhaps  the  question  is  now  of  little  importance. 
The  authorities  showing  that  such  an  action  is  essentially  founded  on 
contract  are  (besides  the  case  of  Boulston  v.  Sandiford,  p.  166,  ante) 
Buddie  v.  Wilson  (K.  B.  1795),  6  T.  R.  369,  3  I£.  \\.  202;  Powell  v. 
Layton  (C.  l.\  1806),  2  Bos.  &  P.  N.  R.  365.  See  also,  as  to  carriers  of 
passengers,  Alton  v.  Midland  By.  Co.  (I860),  19  C.  B.  x.  s.  213; 
-34  L.  J.  C.  P.  292.  On  the  other  side  are  Govett  v.  Radnidge  (K.  B. 
1802),  3  East,  69;  Bretherton  v.  Wood  (C.  P.  1821),  3B.  &  B.  54;  Pozzi 
v.  Shipton  (K.  B.  1838),  8  Ad.  &  El.  963.  That  in  certain  cases  a  lia- 
bility arises  independently  of  the  contract,  appears  from  Marshall  v. 
York,  &e.,  By.  Co.  (1852),  21  L.  J.  C.  P.  3d,  11  ('.  15.  055,  where  a 
servant  was  held  entitled  to  sue  for  the  loss  of  his  baggage,  though  the 
contract  of  carriage  was  made  with  his  master:  and  Austin  v.  G.  W. 
By.  Co.  (1867),  L.  R.,  2  Q.  B.  (per  Blackburn,  p.  445)  447,  36  L.  d. 
Q.  B.  202.  So  in  Foul  has  v.  Metr.  Dist.  A'//.  Co.  (1880),  5  C.  P.  D. 
117;  49  L.  J.  C.  P.  361,  where  the  defendant,  having  taken  a  ticket 
issued  by  the  S.  Ry.  Co.,  travelled  in  a  carriage  of  the  Metr.  Dist.  Ry. 
Co..  ami  was  injured  owing  to  the  unsuitableness  of  that  carriage  to  the 
platform  where  he  got  out.  On  a  review  of  the  traffic  arrangements  it 
was  considered  that  there  was  a  contract  with  the  Metr.  Dist.  Co..  but 
independently  of  that  they  were  held  liable  for  negligence. 

AMERICAN    NOTES. 

In  an  action  of  tort  the  non-joinder  of  defendants  is  no  defence.  Inhabitants 
o/Milford  v.  Holbrook,  It  Allen  (.Massachusetts),  2-\ ;  85  Am.  Dec.  735.  -The 
general  rule  in  America  is   that    the   liability  of   two   or   more   persons   who 


188  ABATEMENT. 


No.  5.  —  Sylvester's  Case.  —  Rule. 


jointly  engage  in  the  commission  of  a  tort  is  joint  and  several,  and  gives  the 
same  rights  of  action  to  the  person  injured  as  a  joint  and  several  contract." 
2  Black  on  Judgments,  §  777.  See  Sessions  v.  Johnson,  95  U.  S.  34  ;  Preston 
v.  Hutchinson,  29  Vermont,  14-4;  Sheldon  v.  Kibbe,  3  Connecticut,  214;  8  Am. 
Dec.  176;  Atlantic  Dock  Co.  v.  Mayor,  53  New  York,  04;  Elliot  v.  Porter,  5 
Dana  (Kentucky),  299;  30  Am.  Dec.  089;  United  Soc.  v.  Underwood,  11 
Bush  (Kentucky),  205;  21  Am.  Rep.  214;  Knott  v.  Cunningham,  2  Sneed 
(Tennessee),  204;  Turner  v.  Hitchcock,  20  Iowa,  310;  Williams  v.  Sutton,  43 
California,  05;   Creed  v.  Hartmann,  29  New  York,  591. 

As  a  general  rule,  in  actions  in  form  ex  delicto,  for  a  tort  committed  by 
several,  the  plaintiff  may  sue  any  of  them,  and  the  non-joinder  of  others  can- 
not he  pleaded  in  abatement ;  but  when  the  action  relates  to  real  property. 
if  it  be  such  as  to  draw  in  question  the  title,  all  those  jointly  concerned 
should  be  made  co-defendants.  Low  v.  Mumford,  14  Johnson  (New  York), 
420 ;  7  Am.  Dec.  409.  This  was  an  action  for  flowing  lands.  The  court  said  : 
"In  the  case  of  Mitchell  v.  Tarbutt,  5  T.  R.  049,  Lord  Kenyon  recognizes  this 
distinction,  and  says :  '  Where  there  is  any  dispute  about  the  title  to  land,  all 
the  parties  must  be  brought  before  the  court.'  "  This  case  was  followed  in 
Southard  v.  Hill,  44  Maine,  92  ;  69  Am.  Dec.  85,  the  court  saying :  "  One 
reason  why  the  plaintiff  in  an  action  ex  delicto  should  not  be  required  to  in- 
clude all  the  tortfeasors  is  that  he  may  not  know  them,  or  be  able  to  find 
proof  against  them.  But  where  the  gist  of  the  action  is  that  the  defendants 
are  proprietors  of  the  land,  and  have  neglected  a  duty  incident  to  their  title, 
it  is  otherwise." 

Section    III.  —  Various  Causes  of  Abatement. 

No.   5.  —  SYLVESTEK'S   CASE. 

(1701.) 

RULE. 

It  is  a  good  plea  in  abatement  that  the  plaintiff  is  an  alien 

enemy. 

Sylvester's  Case. 

7  Mod.  150. 

Sylvester  was  a  French  refugee.  To  an  action  brought  by 
him,  it  was  pleaded  in  abatement,  that  he  was  an  alien  enemy, 
born  under  the  ligeance  of  the  French  king,  then  in  war  witli  the 
queen. 

To  this  there  was  a  demurrer. 

And  per  Curiam.  The  plea  is  good ;  for  though  he  be  a  poor 
refugee,  and  under  the  queen's  protection,  which  enables  him  to 
sue,  yet  whether  his  protection  be  special,  or  general  as  by  procla- 
mations, he  ought  to  plead  it. 


SECT.  III.  —  VAU10US    CAUSES.  189 

No.  5.  —  Sylvester's  Case.       Notes. 

And  per  Curiam.  If  a  writ  be  abatable  in  itself,  as  being  for  a 
wrung  man,  the  defendant  may  say,  petit  judicium  de  Mild,  be- 
cause there  the  action  is  ill  conceived;  but  where  the  writ  is 
well  conceived,  but  bad  for  misnomer,  the  defendant  cannot  con- 
clude so. 

And  per  Curiam.  If  an  alien  enemy  come  into  England  with- 
out the  queen's  protection,  he  shall  be  seized  and  imprisoned  by 
the  law  of  England,  and  he  shall  have  no  advantage  of  the  law  of 
England,  nor  for  any  wrong  done  to  him  here ;  but  if  lie  has 
a  general  or  a  special  protection,  it  ought  to  come  of  his  side  in 

pleading. 

ENGLISH   NOTES. 

Pendency  of  another  action  for  the  same  cause  is  a  good  plea  in  abate- 
ment.    Bowler  v.  Spathurst  (1696),  Lutw.  31. 

But  it  is  no  ground  for  staying  proceedings  in  an  action  in  the  Eng- 
lish court  that  an  action  is  pending  between  the  same  parties  for  the 
same  cause  of  action  in  a  foreign  country.  Cox  v.  Mitchell  (1859),  7 
C.  B.,  n.s.  55;  29  L.  J.  C.  P.  33.  This  is  followed  by  Mr.  Justice 
Chitty  in  McHenry  v.  Lewis  (1882),  21  Ch.  D.  202;  52  L.  J.  Ch.  325. 
And  the  same  principle  was  followed  by  the  court  of  appeal  in  Mutrie 
v.  Binney  (1887),  35  Ch.  P.  614. 

This  last-mentioned  case  was  an  application  for  striking  out  a  counter- 
claim to  have  certain  accounts  taken,  on  the  ground  that  a  decree  for 
taking  those  accounts  had  been  made  in  Honduras.  The  court  inti- 
mated that  if  the  defendant  had,  without  an  action  being  brought  against 
him  here,  himself  brought  an  action  to  have  the  accounts  taken,  after 
getting  a  decree  for  that  purpose  in  Honduras,  they  would  have  stayed 
the  action  as  vexatious.  But  since,  although  the  decree  has.  been  made 
in  Honduras,  the  action  has  not  been  finally  wound  up,  it  would  be 
wrong  to  strike  out  the  counter-claim  so  as  to  prevent  full  justice  being 
done  in  the  English  action,  having  regard  to  the  state  of  the  Honduras 
action.  But  they  observed  that  the  defendant  could  not  be  allowed  to 
raise  again  here  &xiy  questions  which  have  been  decided  by  a  competent 
tribunal,  as  between  him  and  the  plaintiff,  in  the  Honduras  action. 
Mutrie  v.  Binney,  supra,  35  Ch.  D.  639. 

In  an  action  of  contract  against  A.  he  cannot  plead  in  abatement  the 
pendency  of  another  action  for  the  same  cause  against  B.  Henry  v. 
Goldney  (1846),  15  M.  &  W.  494;  15  L.  J.  Exch.  298. 

The  following  rules  are  established  by  the  case  of  Foxtwist  v.  Tre- 
maine  (1670),  2  Saunders,  212. 

1.  It  is,  in  general,  a  good  plea  in  abatement  that  a  plaintiff  suing 
by  attorney  is  an  infant. 


190  ABATEMENT. 


No.  5.  —  Sylvester's  Case.  —  Notes. 


2.  In  an  action  by  executors  affecting  the  trust  estate,  if  one  of  the 
executors  is  not  joined. as  plaintiff,  it  maybe  pleaded  in  abatement. 

But,  3.  If  an  executor  is  under  age,  the  other  executor,  being  of  full 
age,  may  make  an  attorney  for  him. 

It  is  a  good  plea  in  abatement  that  the  plaintiff  has  been  attainted 
of  high  treason.     See  Blsse  v.  Harcourt  (1787),  3  Mod.  281. 

It  is  a  good  plea  in  abatement  that  the  plaintiff  was  a  feme  covert  at 
the  time  of  action  brought.     Gravenor  v.  Stevens  (1697),  10  Mod.  1G6. 

The  death  of  a  party  (as  a  general  rule)  abates  an  action,  but  where 
the  action  is  against  several  defendants  in  trespass,  the  death  of  one- 
does  not  abate  the  action.     Dacres  v.  Dunkin  (1693),  2  Levinz,  82. 

But  where  execution  in  the  name  of  two  has  issued  upon  a  judgment  in 
a  personal  action,  the  death  of  one  does  not  abate  the  writ.  And  semble, 
that  even  on  the  death  of  one  after  judgment  execution  may  jiroeeed  in 
the  name  of  the  other  without  a  scire  facias.  Laic  x.Toothill  &  Rawlins 
(1667),  Carter,  193. 

Actions  by  the  administrator  durante  absentid  as  plaintiff  abate  by 
the  return  of  the  absent  person.  Actions  against  him  continue  against 
the  complete  personal  representative.  Clare  and  Hodges  Claim  (1690), 
1  Lntw.,  fo.  342. 

By  the  C.  L.  Procedure  Act  of  1852  (15  &  16  Vict.  c.  76)  it  was 
provided  (§§  136,  137,  138)  that  there  should  be  no  abatement  of  an 
action  by  the  death  of  a  party  if  the  cause  of  action  survives;  and  by 
these  sections  and  the  92d  section  of  the  C.  L.  P.  Act,  1851  (17  &  18 
Vict.  c.  125)  a  simple  procedure  was  laid  down  for  giving  effect  to  this 
provision.  The  question  as  to  what  causes  of  action  survive  will  be 
treated  of  under  the  topic  of  "Action." 

By  the  C.  L.  P.  Act,  1852  (15  &  16  Vict.  c.  76)  it  was,  by  §  141, 
further  provided  that  the  marriage  of  a  woman  plaintiff  or  defendant, 
should  not  abate  an  action.  The  Act  left  untouched  the  rule  that  the 
coverture  of  the  plaintiff  at  the  time  of  action  brought  was  pleadable  in 
abatement;  only  in  this  as  in  other  cases  of  non-joinder  or  mis-joinder 
of  plaintiffs  it  gave  (by  §§  35  &  36)  new  facilities  for  amendment.  See 
as  to  "modern  practice,  &c,"  p.  163.  ante. 

AMERICAN   NOTES. 

The  doctrine  of  the  principal  case  is  laid  down  in  Jackson  v.  Henri/,  10 
Johnson  (New  York),  185;  Hutchinson  v.  Brock,  11  Massachusetts,  119;  Rus- 
sell v.  Skipwilh,  0  Binney  (Penn.),  241;  Bagwell  v.  Babe,  1  Randolph  (Vir- 
ginia), 272;  Coxe  v.  Gulick,  5  Halstead  (New  Jersey),  328  ;  Brinley  v.  Avery* 
Kirby  (Connecticut),  25. 

Pendency  of  another  and  former  action  for  the  same  cause  in  the  same 
State  is  a  valid  plea  in  abatement.  Humphries  v.  Dawson,  38  Alabama,  199 ; 
Prosser  v.  Chapman,  29  Connecticut,  515 ;  Buffum  v.  Tilton,  17  Pickering, 
(Mass.),  510 ;  Grider  v.  Apperson,  32  Arkansas,  332. 


SECT.  IV.  —  HOW    PLEADED.  191 


No.  6.  —  Warner  v.  Irby.  —  Rule. 


Not  .so  of  an  action  in  a  foreign  court,  or  in  a  court  of  another  State,  or  in 
a  Federal  court.  Lyman  v.  Brown,  2  Curtis  (U.  S.),  559;  Bowne  v.  Joy,  9 
Johnson  (New  York).  221  :  Newell  v.  Newton,  10  Pickering  (.Mass.),  170. 

The  following  are  also  good  grounds  for  the  plea  :  that  plaintiff  is  a  fictiti- 
ous person.  Doe  v.  Penfield,  19  Johnson  (Xew  York),  308;  Boston  Type  Foun- 
dry v.  Spooner,  5  Vermont,  93;  or  was  dead  before  suit.  Sandback  v.  Quigley, 
8  Watts  (Penn.),460;  or  is  an  infant  and  lias  declared  by  attorney,  Schemer- 
horn  v.  Jenkins,  7  Johnson  (New  York),  373  ;  Blood  v.  Harrington,  8  Pickering 
(Mass.),  552;  Smith  v.  Hm  Houten,  4  Halsted  (New  Jersey),  381;  or  insane 
and  under  guardianship.  Collard  v.  Crane,  Brayton  (Vermont),  18  ;  or  a,  feme 
covert  and  her  husband  is  not  joined,  Lyman  v.  Albee,  7  Vermont,  508;  or 
that  persons  suing  in  representative  characters  are  not  entitled.  Conkey  v. 
Kingman,  21  Pickering  (Mass.),  115;  Childress  v.  Emory,  8  Wheaton  (U.  S. 
Sup.).  642;  Varick  v.  Bodine,  3  Hill  (Xew  York),  444;  or  that  the  alleged 
testator  is  living.  Hummel  v.  Brown,  24  Pennsylvania  State,  310;  coverture  of 
defendant,  Surtell  v.  Brailsford,  2  Bay  (So.  Carolina),  333 ;  infancy  of  defend- 
ant. Penrose  v.  Curren,  3  Rawle  (Penn.),  351  ;  privilege  of  defendant,  Forc 
Alstyne  v.  Dearborn,  2  Wendell  (New  York),  580;  /tm^/  v.  Co//.  1  Day 
(Connecticut),  12!) ;  variance  between  writ  and  declaration,  Pierce  v.  L«c#, 
'_':'>  Mississippi,  193;  that  alleged  husband  and  wife  are  not  married,  Coombs 
v.  Williams,  15  Massachusetts,  243;  misnomer,  SmifA  v.  Bowker,  1  Massa- 
chusetts, 76;  defect  in  process,  Hooper  v.  Jellison,  22  Pickering  (Mass.).  250  ; 
(contra)  Jones  v.  Nelson's  Executrix,  51  Alabama.  171 ;  or  in  return,  Embry  v. 
Deoinney,  8  Dana  (Kentucky),  202. 

The  principal  case  is  cited  in  Johnson  v.  Thirteen  Bales  of  Goods,  2  Paine 
(U.  S.  Circ.  Ct.),  641,  with  the  remark:  -Although  these  books  are  not 
esteemed  very  high  authority,  this  case  receives  credit  and  respect  from  a 
reference  in  Bacon."  (As  to  the  estimate  put  on  Modern  Reports  in  this 
country,  see  Wallace's  ••  Reporters,"  p.  354.) 


Section  IV. — Requirements  of  a  good  Plea  in  Abatement. 

No.  6.  —  WARNER   v.  IRBY. 
(1704.) 

RULE. 

A  plea  in  abatement  must  be  pleaded  with  strict  exactness, 
and  give  the  plaintiff  a  better  writ. 

Warner  v.  Irby. 

2  Lord  Ray  in.  1178. 

In  two  actions  against  the  defendant  by  the  name  of  Sir  Edward 
Irby,  baronet,  the  defendant  pleads  in  one  thus  :    Et  prcedictus 


192  ABATEMENT. 


No.  6.  —  Warner  v.  Irby.  —  Notes. 


Edwardus  Irby,  armiger,  in  propria  persona  sua  venit  et  dicit,  that 
he  is  not  a  baronet ;  and  in  the  other  he  pleaded  the  same  matter, 
only  with  this  difference,  that  he  said  only  prcedictus  Edwardus 
venit,  &c.  The  plaintiff  demurred.  Mr.  Southonse  took  exception 
to  the  pleas,  that  it  was  said  prazdictus  Edwardus,  which  was 
admitting  himself  to  be  tight  named,  and  after  that  he  is  estopped 
to  plead  any  misnomer.  But  he  ought  to  have  pleaded  that  Ed- 
wardus Irby,  armiger,  qui  per  nomen  Edwardi  Irby,  baronetti,  is 
sued,  venit  in  propria  persona  sua,  &c.,  et  dicit,  &c.  Sergeant 
Broderick,  for  the  defendant,  insisted  that  there  was  a  difference, 
where  misnomer  of  the  surname  or  addition  is  pleaded  in  abate- 
ment, and  where  misnomer  of  the  Christian  name :  there  you  may 
say  praidictus  the  Christian  name,  where  it  is  the  misnomer  of  the 
surname  is  pleaded,  or  praxlictus  the  Christian  and  surname  where 
it  is  only  the  misnomer  of  the  addition  ;  but  otherwise  if  misno- 
mer of  the  Christian  name  be  pleaded.  And  he  cited  1  Edw.  IV. 
3,  and  said  that  all  the  books  were  so.  Holt  seemed  to  doubt  the 
difference,  but  said,  that  if  it  were  so,  yet  the  plea  was  naught,  for 
want  of  showing  what  he  is.  For  every  one  that  will  abate  the 
plaintiffs  writ  must  give  him  a  better.  And  therefore  it  is  not 
enough  for  the  defendant  to  say,  he  is  not  a  baronet,  without  show- 
ing what  he  is.  And  besides,  he  said,  one  of  the  pleas  was  not 
within  his  own  rule,  for  he  ought  according  to  that  to  have  said 
only  praidictus  Edwardus,  or  prcedictus  Edwardus  Irby,  and  not 
praidictus  Edwardus  Irby,  a  rm  iger.  But  the  surest  way  of  pleading 
it  would  have  been  to  have  said,  venit  Edwardus  Irby,  armiger, 
who  is  sued  per  nomen  Edwardi  Irby,  baronetti,  et  dicit,  that  he  is 
an  esquire,  and  not  a  baronet. 

The  court  gave  judgment,  that  the  defendant  respondeat  ulterius, 
nisi,  &c. 

ENGLISH   NOTES. 

A  plea  in  abatement  is  bad  which  docs  not  give  the  plaintiff  a  better 
writ,  but  tends  to  show  lie  can  maintain  no  action.  Anon.  (1705),  3 
Salk.  1 ;  Evans,  qui  tam,  v.  Stevens  (K.  B.  1791),  4  T.  R.  224. 

When  parties  went  to  trial  upon  a  pica  in  abatement  for  non-joinder 
of  defendants,  and  it  appeared  in  evidence  that  there  were  other  co-con- 
tractors besides  those  mentioned  in  the  plea,  the  plea  was  held  disproved 
and  verdict  entered  for  the  defendants,  and  the  verdict  was  upheld  after 
argument  upon  a  rule  for  a  new  trial.  Crellin  v.  Calvert,  So. me  v. 
Brook  (1845),  14  M.  &  W.  11;  14  L.  J.  Exch.  375. 


SECT.  IV.  —  HOW    PLEADED.  193 


No.  6. — Warner  v.  Irby. — Notes. 


By  the  Act  4  &  5  Ann.  c.  1G  (1705),  §  11,  every  dilatory  plea  (which 
included  pleas  in  abatement)  must  be  verified  by  affidavit. 

If  the  affidavit  in  support  of  the  plea  is  insufficient,  the  Court  will 
set  aside  the  plea  for  irregularity.  Bray  v.  Haller  (< !.  P.  1818),  2  M  oore, 
213.  Such  a  plea  is  a  mere  nullity.  Garratt  v.  Hooper  (C.  P.  1831), 
1  Dowl.  28. 

The  Act  3  &  4  Win.  IV.  c.  42  (1833),  §§  8  and  9,  introduced  new  pro- 
visions as  to  the  plea  of  abatement  for  non-joinder  of  co-defendants  (see 
p.  172,  ante). 

The  affidavit  under  3  &  4  Win.  IV.  c.  42,  §  8,  verifying  the  plea  of 
abatement  for  non-joinder  of  a  co-contractor,  must  state  the  place  of  resi- 
dence of  the  co-contractor,  and  not  merely  his  place  of  business.  May- 
bury  v.  Mudie  (1847),  5  C.  B.  283;  17  L.  J.,  C.  P.  95;  Wheatley  v. 
Golney  (1841),  9  Dowl.  1019.  The  true  residence  or  domicile  of  the 
person  ought  to  be  stated;  and  this  satisfies  the  statute,  although  tem- 
porarily the  defendant  was  absent  from  his  home,  and  the  house  occupied 
by  another  person.  Lambe  v.  Smythe  (1846),  15  M.  &  W.  433;  15  L.  J. 
Exch.  287. 

Where  a  mistake  was  made  in  stating  the  residence  the  plea  was  set 
aside;  but,  upon  showing  that  the  mistake  was  purely  accidental,  the 
defendant  obtained  leave  to  plead  over.  Newton  v.  Stewart  (1846),  4 
D.  &  L.  89;  15  L.  J.  Q.  B.  384. 

The  affidavit  must  give  the  residence  at  the  time  of  the  plea,  and  not 
of  the  commencement  of  the  suit.     White  v.  Gascoyne  (1848),  3  Ex.  36. 

As  to  the  abolition  of  abatement  by  modern  rules  see  p.  163,  ante. 
The  requirements  of  the  affidavit  under  the  old  practice  are  referred 
to  in  argument  in  the  case  of  Drage  v.  Hartopp,  (1885,  p.  159,  ante), 
28  Ch.  D.  414;  54  L.  J.  Ch.  434. 

AMERICAN   NOTES. 

The  doctrine  of  the  principal  case  is  also  that  of  the  old  American  cases.  Hay- 
wood v.  Cheslney,  13  Wendell  (New  York),  495 ;  Clark  v.  Warner,  3  Connecticut. 
655;  Townsend  v.  Jeffries'  Adm'r,  '24  Alabama,  329;  Pearson  v.  French,  9  Ver- 
mont, 349;  East  v.  Cain,  49  Michigan,  473;  Ellis  v.  Ellis,  1  Rhode  Island, 
110.  This  is  because  these  pleas  are  dilatory  and  suspicious.  Clark  v. 
Warner,  supra.  In  this  plea,  form  is  substance,  and  so  a  plea  in  abatement 
in  trespass,  defending  the  "wrong  and  injury"  instead  of  the  "force  and  in- 
jury," was  held  bad.  Townsend  v.  Jeffries'  Adm'r,  supra.  So  of  "  writ  and 
declaration  "  instead  of  "  bill  and  declaration."  Haywood  v.  Chestney,  supra. 
There  will  be  no  intendment  in  favour  of  it.     Pearson  v.  French,  supra. 

In  this  country  the  plea  is  generally  required  to  be  supported  by  proof  of 
its  truth,  as  under  4  &  5  Anne,  ch.  16,  §  11  (4).  See  Am.  &  Eng.  Ency.  of 
Law.  Abatement,  p.  11.  These  technicalities  have  been  generally  obviated 
by  the  modern  American  codes  of  procedure. 

VOL.   I.  —  13 


194  ACCELERATION. 


Lainson  v.  Lainson.  —  Rule. 


ACCELERATION. 


LAINSON   v.  LAINSON. 

(chancery,  1853,  1854.) 

RULE. 

Where  a  testator  devises  property  to  A.  for  life,  and  after 
his  death  to  B.,  and  by  a  codicil  revokes  the  life  estate,  the 
intention,  prima,  facie,  is  to  accelerate  the  subsequent  gift. 
and  that  gift  comes  into  immediate  operation,  just  as  if  the 
life  estate  had  been  determined  by  death. 

Lainson  v.  Lainson. 

18  Reav.  1;  5  De  G.  M.  &  G.  754  (s.  C  23  L.  J.  Cli.  170;  24  L.  J.  Cli.  46). 

The  testator  devised  his  freehold  estates  to  three  trustees,  upon 
trust  to  pay  certain  annuities  to  his  wife  for  life,  and  to  his  son  John 
until  he  should  attain  thirty;  "and  from  and  after  such  time  as  his 
son  should  have  attained  his  age  of  thirty  years,  or  should  have  died 
under  that  age,  upon  further  trust"  to  pay  the  rents  "to  his  son 
John  Lainson,  for  and  during  the  term  of  his  natural  life,  in  case 
lie  should  attain  the  said  age  of  thirty  years.  And  from  and  imme- 
diately after  his  decease,  whether  he  should  or  should  not  live  to 
attain  the  age  of  thirty  years,  to  stand  seised  of  and  interested  in 
all  his  said  freehold  estates,  in  trust  for  the  first  and  every  other 
son  of  his  said  son  John  Lainson,"  successively  in  tail,  with  divers 
remainders  over,  and  with  an  ultimate  remainder  to  the  testator's 
own  right  heirs.  The  residuary  personal  estate  was  bequeathed  on 
trust  to  invest  on  freeholds,  or  leaseholds,  which  were  to  be  held 
upon  the  same  trusts  as  the  freeholds. 

The  testator's  son  married  in  May,  1844,  on  which  occasion  the 
testator  entered  into  a  bond  for  his  benefit. 

On  the  12th  of  June,  1844,  the  testator  made  a  third  codicil  to 
his  will,  whereby,  after  reciting  his  will,  the  marriage  of  his  son, 
and  the  provisions  then  made,  he  revoked  the  trusts  for  paying  John 


ACCELERATION.  1(J5 


Lainson  v.  Lainson. 


Lainson  the  rents  of  his  freehold  and  leasehold  estates  during  his 
life,  from  and  after  he  should  have  attained  the  age  of  thirty  years, 
and  in  lieu  and  instead  of,  and  in  substitution  for  such  provisions, 
he  directed  his  trustees  to  pay  him  an  additional  annuity.  But  he 
retained  to  his  son  the  same  powers  of  charging  the  estate  with 
portions  for  his  younger  children,  and  jointure  for  his  wife,  which 
he  might  execute  as  if  he  had  been  entitled  to  the  rents  for  life ; 
and  the  testator  declared,  that  his  trustees  might  exercise  the  powers 
of  leasing,  sale,  and  exchange,  given  to  them  by  the  will,  without 
his  son's  consent,  and  "  as  if  he  had  departed  this  life." 

The  testator  died  three  days  afterwards  (15th  June,  1844),  and 
John  Lainson  subsequently  had  a  son  Arthur,  born  in  1845.  John 
Lainson  attained  thirty  in  1846,  and  the  question  now  was,  whether 
the  revocation  by  the  codicil  of  the  life  estate  to  John  Lainson 
created  pro  tanto  an  intestacy  as  to  his  life  estate,  and  enured  to 
his  benefit  as  heir-at-law,  or  whether  the  subsequent  estate  to 
Arthur  Lainson  became,  by  the  revocation  of  the  prior  life  estate, 
accelerated  ? 

Mr.  Willcock  and  Mr.  Messiter,  for  the  plaintiffs,  the  trustees  and 
executors. 

Mr.  C.  P.  Cooper  and  Mr.  Greene,  for  John  Lainson,  the  testator's 
heir-at-law.  The  gift  to  the  issue  of  John  Lainson  is  only  to  take 
effect "  from  and  immediately  after  his  (John  Lainson's)  death."  The 
consequence  is  that,  until  that  event  happens,  the  rents  are  undis- 
posed of,  and  "  whatever  is  not  given  to  some  devisee,  goes  to  the 
heir-at-law."  Fitch  v.  Weber,  6  Hare,  145  ;  Tregonwell  v.  Sydenham, 
3  Dow.  H.  Lds.  Cas.  206.  The  latter  case  decides  distinctly  that 
there  is  no  acceleration  of  the  estate  of  the  issue  in  tail.  There  the 
testator  devised  estates  in  Dulverton  to  trustees  for  sixty  years,  to 
raise  two  sums  amounting  together  to  £20,000,  for  the  purchase  of 
lands,  to  be  limited  to  uses  held  to  be  partially  too  remote ;  "  and 
after  the  said  two  sums,  amounting  to  £20,000  and  expenses,  should 
be  raised,"  the  testator  devised  these  estates  to  persons  who  had 
died,  with  remainder  to  the  plaintiff  John  Sydenham  for  life,  &c. 
The  existing  trusts  of  the  lands  to  be  purchased  being  too  remote, 
the  House  of  Lords  held,  that  John  Sydenham  took  nothing  until  the 
two  charges  had  been  raised,  and  that  the  heir-at-law  was  entitled 
to  the  estates  to  be  purchased  with  these  charges  as  undisposed  of. 
The  present  case  is  distinguishable  from  the  instance  of  "  a  series 
of  consecutive  limitations  "  referred  to  by  Jarman  on  Wills,  vol.  1, 


196  ACCELERATION. 


Lainson  v.  Lainson. 


p.  515,  for  here  the  thing  devised  was  minus  the  life  estate  of  John 
Lainson,  and  was  not  a  parcelling  out  of  the  whole  fee  simple 
between  parties  successively  for  life,  with  the  remainder  to  others. 
They  also  cited  Carrick  v.  Errington,  2  P.  Wins.  361. 

Mr.  R.  Palmer,  for  the  widow,  who  was  interested  in  the  undis- 
posed of  personal  estate. 

Mr.  Eoupell  and  Mr.  Murray,  for  the  next  of  kin. 
Mr.  A.  Smith,  for  trustees. 

Mr.  Lloyd  and  Mr.  Speed,  for  Arthur  Lainson.  First,  the  life 
estate  to  John  Lainson  being  revoked,  the  subsequent  estate  of  his 
son  is  accelerated.  The  case  is  decided  by  the  oldest  authority. 
Thus  it  is  said,  "If  a  man  seised  of  land  devise  it  to  a  monk  for  life, 
witli  remainder  to  a  stranger  in  fee,  and  the  devisor  dies,  the  monk 
being  alive,  in  this  case  the  remainder  shall  take  effect  presently, 
because  the  monk  took  nothing  by  the  devise."  Perkins,  Sect.  567. 
In  Fuller  v.  Fuller,  Cro.  Eliz.  422,  there  was  a  devise  to  Richard 
and  his  heirs  of  his  body,  "and  after  his  death  without  issue"  to 
Edward.  Richard  pre-deceased  the  testator,  leaving  issue;  and  one 
question  was,  whether  the  testator's  heir  should  have  the  estate 
while  any  issue  of  the  body  of  Richard  were  living,  or  whether 
Edward  should  enter  presently,  it  not  having  been  limited  to  him 
until  the  death  of  Richard  without  issue;  and  it  was  agreed  by  the 
whole  court  that  Edward  should  have  it  presently.  Again,  in 
Sidney  v.  Shelley,  19  Yes.  352,  an  estate  was  devised  to  trustees  for 
ninety-nine  years,  upon  the  trusts  after  expressed,  "and  from  and 
after  the  expiration  or  other  sooner  determination  of  the  said  term" 
to  parties  in  strict  settlement.  No  trusts  having  been  expressed, 
it  was  held  that  the  term  attended  the  inheritance,  and  that  it  did 
not  belong  to  the  heir,  as  excepted  from  the  devise.  The  same  doc- 
trine is  stated  in  Sheppard's  Touchstone,  p.  435,  and  1  Jarman  on 
Wills,  p.  513,  note  (/),  who  observes  that  "the  principle  of  the  cases 
would  undoubtedly  apply  to  the  case  of  a  devise  of  a  life  estate  being 
revoked  by  the  testator."  Pie  observes  that  "the  doctrine  evidently 
proceeds  upon  the  supposition,  that,  though  the  ulterior  devise  is, 
in  terms,  not  to  take  effect  in  possession  until  the  decease  of  the 
prior  devisee  if  tenant  for  life,  or  his  decease  without  issue  if  ten- 
ant in  tail,  yet  that,  in  point  of  fact,  it  is  to  be  read  as  a  limitation 
of  a  remainder,  to  take  effect  in  every  event  which  removes  the 
prior  estate  out  of  the  way."  The  limitations  here  are,  therefore, 
to  be  read  as  to  A.  for  life,  and  subject  thereto  to  B. 


ACCELERATION.  197 


Lainson  v.  Lainson. 


Secondly,  there  is  upon  the  face  of  the  codicil  an  evident  intention 
that  the  subsequent  limitation  should  take  effect  immediately,  as  if 
John  Lainson  were  dead,  for  the  testator  declares  Ins  trustees  may 
exercise  the  powers  of  leasing,  sale,  and  exchange,  without  his  con- 
sent, and  "  as  if  my  said  son  had  departed  this  life." 

Mr.  Follett  and  Mr.  Kinglake,  for  other  parties. 

Mr.  Greene,  in  reply.  The  earlier  authorities  are  favourable  to 
acceleration,  but  modern  decisions  tend  the  opposite  way.  This  is 
not  the  case  of  a  devise  to  A.  for  life,  "with  remainder,"  or  "subject 
thereto,"  or  "from  and  after  the  determination  of  A.'s  estate,"  to  B., 
but  the  gift  to  Arthur  is  limited  and  circumscribed,  and  is  only  to 
take  effect  "  from  and  immediately  after  the  decease  "  of  his  father. 
The  life  estate  is  removed  out  of  the  will  altogether,  and  there  is, 
therefore,  no  devise  whatever  of  the  beneficial  interest  until  after 
the  death  of  John  Lainson.  John  Lainson,  it  is  true,  is  to  be  treated 
as  dead  for  some  purposes,  but  he  is  considered  alive  for  others,  as 
for  executing  powers  of  jointuring  and  charging  portions. 

Lord  Garrington  v.  Payne,  5  Ves.  404 ;  Roach  v.  Haynes,  6  Yes. 
153,  8  Yes.  584;  Barley  v.  Langworthy,  3  B.  P.  C.  359,  were  also 
cited. 

The  Master  of  the  Eolls  (Sir  John  Bomilly).  The  question  arose 
upon  the  construction  of  the  third  codicil  of  the  will  of  Alderman 
Lainson.  It  may  be  shortly  stated  to  this  effect.  The  testator  by 
his  will  gave  his  real  and  personal  estate  to  trustees,  and  directed 
them,  subject  to  certain  payments  thereout,  to  pay  the  rents  to  his 
son  John  Lainson  for  life ;  and  from  and  after  the  decease  of  his 
son,  he  gave  the  estate  to  his  first  and  other  sons  in  tail  male. 

By  a  third  codicil,  the  testator  revoked  the  bequest  in  favour  of 
his  soir,  and  in  lieu  of  it  he  gave  him  an  annuity,  but  he  did  not,  by 
that  or  any  other  codicil,  dispose  of  the  rents  of  the  estate  during 
the  life  of  John  Lainson  his  son. 

The  question  is,  whether  this  creates  an  intestacy,  or  an  accelera- 
tion of  the  estate  to  the  son  of  John  Lainson;  and  I  am  of  opinion, 
that  it  is  an  acceleration  of  the  estate  to  the  son  and  not  an  intes- 
tacy. I  have  looked  carefully  at  the  authorities,  and  I  am  unable 
to  distinguish  the  case  where  a  person  gives  an  estate  to  another, 
and  that  fails,  from  the  case  where  the  testator  himself  directs  that 
it  shall  fail;  and  although  the  expression  used  is,  that  the  estate  to 
the  son  of  John  Lainson  is  only  to  take  effect  "from  and  after  John 
Lainson's  decease,"  I  am  of  opinion  that  the  meaning  is,  "from  and 


198  ACCELERATION. 


Lainson  v.   Lainson. 


after  the  determination  of  his  estate  by  death  or  otherwise."  In 
deciding  thus,  I  fulfil  the  intention  of  the  testator.  It  is  expressly 
stated  on  the  will,  that  the  testator  did  not  intend  the  son  to  take 
the  estate  in  addition  to  the  annuity  (which  he  would  do  if  I  were 
to  hold  there  was  an  intestacy),  but  in  lieu  of  it.  The  result  is, 
that  I  must  make  a  declaration  that  there  is  an  acceleration  of  the 
estate  to  the  eldest  son  of  John  Lainson. 

The  case  having  been  brought  on  appeal  before  the  Lord  Justices, 
the  decision  of  the  Master  of  the  Rolls  was  affirmed.  The  follow- 
ing were  the  judgments  pronounced. 

The  Lord  Justice  Knight  Bruce.  It  is  to  be  regretted,  that  a  slip 
in  the  preparation  of  this  codicil  —  (a  slip  by  way  of  omission)  — ■ 
lias  rendered  an  argument  on  the  testator's  intention  maintainable 
and  necessary — has  rendered  it  necessary  to  attend  to  the  whole 
of  the  codicil  from  beginning  to  end.  It  is,  however,  less  to  be 
regretted  in  this,  than  in  many  ether  cases,  because  an  attentive  or 
even  a  slight  consideration  of  the  whole  codicil  renders  it  clear 
beyond  a  doubt,  what  was  really  the  testator's  meaning;  namely, 
that  the  previous  life  estate  given  to  his  son  should  be  abolished, 
in  favour  of  those  who  were  to  come  after,  subject  only  to  the 
express  provision  made  by  the  codicil  for  his  son's  benefit.  The 
appeal  must  be  dismissed  with  costs. 

The  Lord  Justice  Turner.  The  question  in  this  case  is,  not 
whether  an  intention  is  to  be  collected  in  favour  of  the  testator's 
son  and  heir  (who  requires  no  intention  in  his  favour);  but  whether 
there  is  an  intention  in  favour  of  the  grandson.  The  question  may 
lie  considered  in  two  points  of  view;  first,  as  regards  the  will; 
secondly,  as  regards  the  codicil.  By  the  will,  the  estate  is  given 
upon  trust  for  the  testator's  son  for  life  ;  and,  from  and  immediately 
after  his  decease,  upon  trust  for  his  first  and  other  sons  in  tail. 
These  words  may  have  one  of  two  imports,  either  that  the  grandson 
was  to  take  nothing  till  after  the  death  of  his  father,  or  else  merely 
to  show  the  order  of  the  limitations,  through  which  the  estate  was 
to  pass.  I  take  the  cases  cited  to  establish  the  proposition,  that 
primd  facie  these  words  are  to  be  understood  as  denoting  the  order 
of  succession  of  the  limitations.  Is  there  then  anything  in  the  will 
to  lead  to  a  different  conclusion  ?  I  can  see  nothing.  If  John  Lain- 
son had  died,  there  can  be  no  doubt  that  the  grandson  would  have 
come  into  possession  immediately  ;  and  what  difference  does  it  make, 


ACCELERATION.  199 


Lainson  v.  Lainson.  —  Notes. 


whether  the  previous  estate  is  removed  by  death  or  by  revocation  ? 
The  words  of  the  codicil  seem  to  me  to  confirm  this  view.  It  is 
the  clear  intention  of  the  will  to  dispose  of  all  the  estate  for  the 
benefit  of  the  testator's  son,  and  his  issue.  The  codicil  does  not  at 
all  alter  this  intention,  but  only  changes  the  order  of  succession  in 
which  the  devisees  are  to  take.  No  doubt,  a  will  might  be  drawn 
in  such  a  way  as  to  show  an  intention  that  the  remainderman  should 
not  take  till  after  the  death  of  the  first  devisee ;  but  there  is  noth- 
ing in  this  codicil  to  show  such  an  intention.  I  agree  that  the 
appeal  must  be  dismissed  with  costs. 


ENGLISH    NOTES. 

In  the  cases  of  Tregonwell  v.  Sydenham  (1815),  3  Dow.  194,  and 
Carrick  v.  Errington  (1726),  2  P.  Williams,  361,  referred  to  in  the 
argument,  the  interest  was  held,  on  failure  of  the  devise,  to  go  to  the 
heir-at-law;  there  being  nothing  to  imply  a  contrary  intention.  In 
the  former  of  those  cases,  there  was  a  term  of  sixty  years  given  to 
trustees  upon  trust  to  raise  a  sum  of  £20,000,  and  to  invest  it  in  land 
to  be  held  upon  limitations  which  were  void  for  remoteness.  That 
circumstance  was  held  not  to  accelerate  the  estates  of  the  persons  who 
took  subject  to  the  term.  And  the  benefit  of  the  £20,000  went  to  the 
heir-at-law.  In  the  latter  (Carrick  v.  Errington),  land  was  settled 
by  deed  to  A.  for  life,  remainder  to  B.  (a  papist)  for  life,  remainder  to 
trustees  to  preserve  contingent  remainders,  remainder  to  the  first  and 
other  sons  of  B.  successively  in  tail,  remainder  to  (J.  (a  protestant), 
&c.  On  the  death  of  A.  it  was  held  that  C.'s  estate  was  not  (by  reason 
of  the  then  disability  of  papists)  accelerated;  for  the  trust  was  inter- 
posed to  preserve  the  remainders  for  the  benefit  of  B.'s  sons, — and 
that  the  heir-at-law  took  the  benefit  during  B.'s  life.  It  was  ruled 
that  if  the  estate  had  simply  been  limited  to  A.  for  life,  remainder  to 
B.  for  life,  remainder  to  C,  the  estate  of  C.  would  have  been  accelerated 
by  reason  of  B.'s  disability. 

Lainson  v.  Lainson  was  followed,  and  the  principle  of  acceleration 
applied  to  personalty,  by  Romilly,  M.  R.,  in  Eavestaff  v.  Austin 
!bS~>4),  19  Beav.  591;  and  by  Peaksox,  J.,  in  In  re  Stephenson. 
Stephenson  v.  Stephenson  (1885),  54  L.  J.  Ch.  928;  52  L.  T.  576. 

In  Craven  v.  Brady  (1869),  L.  R.  4  Ch.  296;  38  L.  J.  Ch.  345,  a 
testator  under  a  general  power  had  appointed  to  his  wife  for  life,  re- 
mainder to  her  son,  with  a  proviso  for  forfeiture  of  her  life  estate  in 
case  of  her  doing  any  act  by  which  she  deprived  herself  of  the  control 
of   the  property.      She   married  without  a  settlement,  so    that,  as    the 


200  ACCELERATION. 


Lainson  v.  Lainson.  —  Notes. 


law  then  stood,  her  husband  came  into  the  control  of  her  property.  It 
was  held  that  the  remainder  to  the  son  was  accelerated,  and  took  im- 
mediate effect. 

In  Jail  v.  Jacobs  (1876),  3  Ch.  D.  703,  the  testator  gave  real  and 
personal  estate  to  his  daughter  during  her  lifetime,  and  after  her  death 
to  be  equally  divided  between  her  children  on  their  becoming  of  age. 
The  daughter  had  been  one  of  the  attesting  witnesses  to  the  will;  and 
was  therefore  disabled  from  taking,  under  the  statute  (1  Vict.  c.  26, 
§  15).  V.  C.  Malins  held  that  the  gift  to  the  children  was  accelerated, 
and  took  effect  immediately.  This  was  followed  by  V.  C.  Bacon,  in 
In  re  Clark,  Clark  v.  Handle  (1885),  31  Ch.  D.  72;  55  L.  J.  Ch.  89. 
In  In  re  Love,  Green  v.  Tribe  (1878),  47  L.  J.  Ch.  783,  the  same 
principle  was  followed  by  Fky,  J.,  in  regard  to  a  legacy  of  £1000 
bequeathed  in  trust  for  E.  for  life,  remainder  to  her  children.  Only, 
there  being  no  child  in  existence  at  the  time  of  the  will  coming  into 
operation,  the  income  which  might  accrue  until  a  child  was  born  must 
fall  into  residue. 

In  the  case  of  In  re  Townsend's  estate,  Townsend  v.  Townsend 
(Chitty,  J.,  1886),  31  Ch.  D.  357;  56  L.  J.  Ch.  237,  there  was  a  gift  of 
real  and  personal  estate,  income  to  A.  for  life,  and after  his  death  to  pa}r 
the  capital  and  income  to  his  children  in  equal  shares.  The  will  had 
been  attested  by  A. 's  wife,  so  that  he  could  not  take.  It  was  held  that, 
until  he  had  a  child,  the  gift  of  income  could  not  be  accelerated,  and 
that  the  income  in  the  meantime  went  to  the  heir-at-law.  But  if  a 
child  of  A.  should  be  born,  the  case  of  Jull  v.  Jacobs  would  apply,  and 
the  interest  of  the  children  be  accelerated. 

It  has  been  likewise  held  that  a  power  of  sale  exercisable  on  an 
estate  coming  into  possession  at  the  death  of  a  tenant  for  life,  is,  as 
well  as  the  estate  with  which  it  is  associated,  accelerated  by  the  sur- 
render of  the  life  estate.  Truell  v.  Tyson  (1856),  21  Beav.  437;  24 
L.  J.  Ch.  801.  A  power  of  charging  is  distinguishable,  on  the  ground 
that  to  admit  acceleration  might  lead  to  an  undue  multiplying  of  charges. 

The  principle  of  Lainson  v.  Lainson  has  been  recognized  and  ap- 
plied by  the  Judicial  Committee  of  the  Privy  Council  (in  an  appeal 
from  India)  to  the  construction  of  a  will  of  a  native  proprietor  of  an 
estate  in  Oudh;  so  as  to  accelerate  the  gift  in  remainder,  on  the  prior 
gift  for  life  to  a  widow  failing  to  take  effect.  Ajudhia  BuJcsh  v. 
Mussamut  Rukmin  Kuar  and  another  (1883)  L.  K.  11  Ind.  App.  1. 

AMERICAN  NOTES. 

If  the  devisees  of  property  for  life  decline  to  accept  it,  it  vests  in  possession 
in  those  to  whom  it  was  limited  in  remainder,  and  the  heirs  of  the  devisor 
have  no  right  to  the  possession  of  the  property  during  the  life  of  the  first 


ACCELERATION.  201 


Lainson  v.  Lainson.  —  Notss. 


devisee.  Yeaton  v.  Roberts,  28  New  Hampshire,  459;  Adams  v.  Gillespie,  2 
Jones  Equity  (No.  Carolina),  241;  Macknet  v.  Macknet,  9  ('.  E.  Green 
( New  Jersey),  277. 

See  note  on  Acceleration,  19  Abbott's  New  Cases  (New  York),  331. 

A  legacy  payable  at  a  future  time,  and  not  charged  on  land,  becomes  pay- 
able presently  on  the  legatee's  death  before  the  day  of  payment,  if  the 
postponement  was  intended  for  his  benefit;  otherwise  if  it  was  intended  for 
the  benefit  of  others.  Jacobs  v.  Bull,  1  Watts  (Penn.),  370  ;  26  Am.  Dec.  72. 
This  was  the  case  of  a  legacy  to  an  infant  payable  in  instalments,  with  inter- 
est, and  the  court  said:  "the  protraction  of  the  payment  was  intended  to 
prevent  him  from  the  temptation  to  squander,  incident  to  the  possession 
of  large  sums  of  ready  money." 

In  Macknet  v.  Macknet,  supra,  the  Chancellor  said  :  "  It  is  perfectly  settled 
that  if  an  estate  is  devised,  charged  with  legacies,  and  the  legacies  fail,  no 
matter  how,  the  devisee  shall  have  the  benefit  of  it  and  take  the  estate.  Lord 
Alvanley,  M.  R.,  in  Kennell  v.  Abbott,  4  Vesey,  802,  811.  See  also  King  v. 
Denison,  1  Vesey  &  Bea.  200.  .  .  .  The  early  cases  in  which  it  was  held  that 
an  estate  in  reversion  vests  immediately  upon  the  determination  of  the  life- 
estate  upon  which  it  is  limited,  by  the  death  of  the  tenant  for  life,  or  by  the 
surrender  or  forfeiture  of  his  estate,  or  his  disqualification  to  take  it,  1  Jar- 
man  on  Wills,  513;  Sheppard's  Touchstone,  435,  have  been  followed  in  this 
country  in  such  cases  as  the  present." 

In  Yeaton  v.  Roberts,  supra,  were  cited  Goodright  v  Opie,  8  Mod.  126  ;  Fuller 
v.  Fuller,  Cro.  Eliz.  422  ;   Cranmer's  Case,  Dyer,  309,  b. 

The  English  doctrine  of  acceleration  of  a  devise  is  recognized  in  Hinkley  v. 
House  of  Refuge,  40  Maryland,  461 ;  17  Am.  Rep.  617,  where  it  is  said  :  "It  is 
certainly  true  that  at  law,  if  a  party  devise  to  A.  for  life,  with  remainder  to 
15.,  and  A.  renounce  the  devise,  or  the  first  devise  be  void,  the  remainder  is 
good,  and  will  take  effect  immediately."  Citing  Shelley's  Case,  1  Co.  101a: 
Rector  of  Chedinglon's  Case,  id.  151;  Brett  v.  Rig/fen,  Plowd.  344;  Hodgson  v. 
Ambrose,  1  Doug.  337.  In  this  case  a  testator  devised  his  property  in  trust  for 
his  wife  for  life,  and  after  her  death  to  pay  certain  legacies  to  charities,  and  to 
hold  the  residue  for  the  vise  of  certain  of  his  relatives.  The  widow  elected  to 
waive  the  provisions  of  the  will  and  take  as  in  case  of  intestacy.  Held,  that 
the  time  for  the  payment  of  the  legacies  to  the  charities  was  not  thereby 
hastened,  and  that  such  charities  were  not  entitled  to  take  until  the  decease 
of  the  wife.     The  court  observed  :  — 

"But  while  this  is  the  general  rule,  it  is  modified  under  certain  circum- 
stances by  the  application  of  the  principles  of  equity,  where  it  is  apparent 
that  the  event  producing  the  acceleration  of  the  time  for  vesting  the  remainder 
in  possession  is  not  contemplated  by  the  will,  and  the  result  produced  would 
contravene  the  intention  of  the  testator.  In  this  case,  it  is  manifest,  that  it 
was  never  contemplated  by  the  testator  that  the  legacies  now  claimed  as  pay- 
able presently  should  lie  paid  before  the  death  of  his  widow.  The  renuncia- 
tion by  the  widow  is  an  event  not  provided  for  by  the  will  ;  and  as  by  that 
event  a  certain  portion  of  the  principal  or  corpus  of  the  estate  is  withdrawn 
from  the  trust  intended  for  the  benefit  of  the  children  of  the  daughter  and 
sister  of  the  testator,  it  is  but  equitable  that  they  should  lie  indemnified  or 


202  ACCELERATION. 


Lainson  v.  Lainson.  —  Notes. 


compensated  as  far  as  can  be,  by  tbe  appropriation  of  the  benefit  renounced 
by  the  widow.  This  is  not  an  application  to  compel  an  election,  but  to  have 
declared  the  effect  of  an  election  already  made ;  and  in  such  case,  the  general 
and  well-established  principle  applies,  that  a  court  of  equity  will  assume 
jurisdiction  to  sequester  the  benefit  intended  for  the  refractory  donee,  in  order 
to  secure  compensation  to  those  disappointed  by  the  election.  2  Story,  Eq. 
Jur.,  Sec.  1083."  The  court  distinguished  Clark  v.  Tennison,  33  Maryland.  85, 
where  property  having  been  bestowed  on  the  wife  during  widowhood,  with  a 
limitation  over  to  the  children  after  her  death,  it  was  held  that  the  limitation 
took  effect  on  her  remarriage. 

Where  a  legacy  is  to  be  paid  at  twenty-one,  and  interest  is  given  during 
minority,  if  the  legatee  dies  under  age,  his  representatives  are  entitled  imme- 
diately ;  but  if  interest  is  not  given,  they  must  wait  until  the  legatee  if 
living  would  have  become  twenty-one.  Merrill  v.  Richardson,  14  Allen 
(Mass.),  2:39. 

When  a  division  is  delayed  during  minority,  not  on  account  of  the  minor, 
but  for  purposes  independent  of  him,  the  minority  being  used  only  as  a 
measure  of  time,  the  division  will  not  be  accelerated  by  the  minor's  death 
under  age.  Robinson  v.  Greene,  If  Rhode  Island,  181,  citing  Coales  v.  Need- 
ham,  2  Vern.  65;  Carter  v.  Church,  1  Ch.  Cas.  113  ;  Boraston's  Case,  3  Rep.  19  a. 
The  same  is  held  in  Titus  v.  Weeks,  37  Barbour  (New  York),  136. 

In  Dale  v.  Bartley,  58  Indiana,  101,  the  will  devised  certain  lands  to  the 
wife  for  life,  to  be  sold  on  her  death  and  the  proceeds  divided  among  certain 
legatees,  and  in  case  of  the  death  of  any  of  them,  their  portion  was  to  go  to 
certain  others.  She  elected  to  take  under  the  statute  instead  of  the  will. 
It  was  held  that  the  sale  and  division  could  not  be  had  until  her  death, 
because  "  until  that  time  it  could  not  be  told  what  legatees  would  survive, 
and  therefore  be  entitled  to  the  legacy." 


ACCIDENT.  20; 


No.  1.  —  Davis  v.  Saunders.  —  Rule. 


ACCIDENT  (Inevitable). 


No.  1.  — DAVIS  v.  SAUNDEES. 
(k.  b.  1770.) 

RULE. 

A  person  engaged  in  a  lawful  act  is  not  responsible  for 
damage  arising  from  a  pure  accident  in  the  doing  of  it. 

Davis  v.  Saunders. 

2  Chitty,  G39. 

This  was  an  action  of  trespass.  The  first  count  of  the  declaration 
set  forth  that  the  defendants,  with  force  and  arms,  took  and  carried 
away  goods  and  chattels  of  the  plaintiff's  (consisting  of  casks  of 
brandy,  &c),  and  converted  them  to  their  own  use.  The  second 
count  set  forth  that  the  defendants,  with  force  and  arms,  broke  and 
damaged  a  certain  sloop  of  the  plaintiffs,  whereby,  &c.  At  the 
assizes  a  verdict  had  been  found  for  the  defendant  on  the  first 
count  and  for  the  plaintiffs  on  the  second  count,  subject  to  the  opin- 
ion of  the  court  on  the  following  case.  That  the  plaintiff  was  owner 
of  the  sloop,  and  the  defendants  owners  of  two  other  sloops.  That 
having  reason  to  believe  there  was  a  raft  of  brandy  left  in  the  sea 
by  the  smugglers  at  Torbay,  several  vessels  went  out  in  search  of 
it.  That  John  Descent  was  the  first  discoverer  of  the  raft,  and  laid 
hold  of  it  with  his  boat-hook ;  but  not  being  able  to  hold  it,  lie  left 
his  boat-hook  sticking  in  the  cable,  and  which  boat-hook  remained 
visible  above  water.  That  Descent  still  continued  there,  and  was 
about  to  return,  but  before  he  got  up,  Davis,  the  plaintiff,  fixed  his 
anchor  to  the  cable  to  which  the  raft  of  casks  was  fastened,  and 
drew  them,  up  to  the  bow  of  the  vessel.  That  whilst  Davis  was 
getting  in  some  of  the  casks,  the  defendants,  Saunders  and  Full  in 
one  boat,  and  Cookes  and  Bartlett  in  the  other,  came  up,  and  each 
got  hold  of  another  part  of  the  raft.  That  whilst  they  had  so  hold, 
by  the  rolling  of  the  sea  and  blowing  of  the  wind  their  ships  drove 
against  the  plaintiff's  vessel,  and  did  lv'ui  damage  to  the  amount  of 


204  ACCIDENT. 


No.  1.  —  Davis  v.  Saunders.  —  Notes. 


the  verdict.  That  the  casks  which  Cookes  and  Saunders  took  from 
the  raft  were  immediately  taken  to  the  customs  and  condemned 
in  the  Exchequer,  no  one  laying  a  claim  thereto.  Whether  the 
plaintiff  is  entitled  to  recover  in  this  action  for  the  damage  done 
to  his  ship. 

Borland,  Serjeant,  for  plaintiff.  Plaintiff  was  the  actual  possessor 
of  the  "raft.  If,  in  the  prosecution  of  an  unlawful  attempt  to  dis- 
possess a  man  of  goods  in  his  possession,  a  damage  is  done,  trespass 
may  be  maintained.  Even  a  person  having  an  illegal  possession, 
may  support  this  action  against  any  person  hut  the  legal  owner. 
Cro.  Eliz.  819;  5  Co.  24(b))  Stra.  777;  1  Salk.  290;  2  Saund.  47,  c. 
Nor  is  the  intent  or  design  of  the  wrong-doer  to  be  much  considered. 
3  Wils.  309;  2  Bla.  E.  832;  3  East,  599,  601.  Where  a  soldier, 
exercising,  discharges  his  musket,  and  hurts  another;  or  a  person 
in  shooting  at  one  but  hits  another,  trespass  will  lie.  Hob.  134; 
Stra.  596.  The  cpuestion  here  is,  whether  it  was  not  an  unlawful 
attempt  to  dispossess  plaintiff,  who  was  in  the  actual  possession  of 
the  raft.     Bro.  Abr.  358. 

Mansfield,  for  defendant.  The  jury  have  found  the  fact  of  pos- 
session of  the  brandy  against  the  plaintiff,  and  therefore  they  have 
found,  on  the  first  count,  against  him ;  this  is  decisive  as  to  the 
second  count;  if  he  had  no  possession,  defendant  would  not  be 
guilty  of  wrongful  act.  Ld.  Raym.  1399.  Here  the  injury  was 
merely  accidental.  It  is  true,  that  even  if  it  had  been  through 
negligence,  it  must  have  been  an  action  of  trespass. 

Burland,  in  reply.  When  the  first  act  was  unlawful,  though  the 
injury  had  been  intended  to  a  third  person,  if  an  injury  ensues  to  me, 
trespass  lies.  It  is  even  so  in  the  case  of  felony.  If  in  prosecution 
of  an  unlawful  act,  a  man  is  killed,  it  is  murder. 

The  court  decided  generally  for  the  defendants  upon  the  whole 
declaration,  being  of  opinion  that  the  original  act  of  the  defendants 
was  not  unlawful.  Judgment  for  defendant*. 

ENGLISH  NOTES. 
The  above  lias  been  chosen  as  a  short  case  embodying  a  general 
principle  which  has  been  frequently  applied  under  varying  circum- 
stances of  detail  in  later  cases.  Of  these  Hammack  v.  JV/iife  (1862),  11 
C.  B.  K.  s.  588,  has  been  frequently  cited  as  a  leading  case.  It  was 
an  action  by  a  widow  and  administratrix,  under  Lord  Campbell's  Act 
(9  &  10  Vict.  c.  93),  against  the  defendant   for  having  by  his   negli- 


ACCIDENT.  205 


No.  1  —  Davis  v.  Saunders.  —  Notes. 


gence  caused  the  death  of  the  intestate.  The  defendant  had  bought  a 
horse  at  Tattersall's,  and  the  next  day  took  him  out  to  try  him  in 
Finsbury  Circus,  a  much  frequented  thoronghfare.  According  to  the 
evidence,  as  stated  by  Ekle,  C.  J.  (p.,  ol.)5),  the  defendant  was  seen  rid- 
ing at  a  slow  pace,  the  horse  seemed  restless,  and  the  defendant  was 
holding  the  reins  tightly,  omitting  nothing  that  he  could  do  to  avoid 
the  accident;  but  the  horse  swerved  from  the  roadway  on  to  the  pave- 
ment where  the  deceased  was  walking,  knocked  him  down  and  injured 
him  fatally.  On  trial  of  the  cause  in  the  Lord  Mayor's  Court,  the 
recorder,  being  of  opinion  that  there  was  nothing  in  the  evidence  to 
warrant  a  jury  in  finding  that  the  defendant  had  been  guilty  of  negli- 
gence, directed  a  nonsuit.  This  ruling  was  unanimously  upheld  after 
argument,  by  the  Court  of  Common  Pleas,  consisting  of  Ekle,  C.  J., 
Williams,  J.,  Willes,  J.,  and  Keating,  J. 

The  judgment  of  the  Court  of  Exchequer  in  Holmes  v.  Mather  (1875), 
L.  E.  10  Ex.  261;  44  L.  J.  Exch.  170,  embodies  the  same  principle. 
The  defendant,  who  had  two  horses  kept  in  a  livery  stable,  wishing  to  try 
them  for  the  first  time  in  double  harness,  had  them  harnessed  together 
in  his  carriage.  At  his  request  a  groom  drove,  the  defendant  sitting  on 
the  box  beside  him.  After  driving  for  a  short  time  the  horses,  startled 
by  a  dog  which  suddenly  rushed  out  and  barked  at  them,  ran  away  and 
became  so  unmanageable  that  the  groom  could  not  stop  them,  though 
he  could  to  some  extent  guide  them.  After  guiding  them  safely  round 
several  corners,  the  carriage  was  arriving  at  the  end  of  a  street  faced 
by  a  shop  in  another  street  lying  at  right  angles.  The  groom  tried  to 
guide  the  horses  through  this  cross  street  to  the  right,  but,  not  entirely 
succeeding,  the  carriage  struck  against  the  palisades  in  front  of  the 
shop,  and  knocked  down  a  woman  (the  plaintiff),  who  was  on  the  pave- 
ment. There  was  a  verdict  for  the  defendant,  leave  being  reserved  to 
the  plaintiff  to  move.  The  case  was  argued  partly  on  the  question 
whether  the  defendant  was  responsible  for  the  groom's  driving;  but  the 
court,  Bramwell,  B.,  Cleasby,  B.,  and  Pollock,  B.,  came  to  the 
conclusion  that,  even  on  the  assumption  that  the  whole  acts  of  the 
groom  were  to  be  considered  as  done  by  the  defendant,  the  defendant 
was  not  liable.  The  driver  had  done  nothing  wrong,  but  endeavoured 
to  do  what  was  best  under  the  circumstances.  The  misfortune  hap- 
pened through  the  horses  being  so  startled  by  the  dog  that  they  ran 
away,  with  the  groom  and  the  defendant  sitting  beside  him.  "For  the 
convenience  of  mankind,"  says  Mr.  Baron  Bkamwell  (p.  267),"  in 
carrying  on  the  affairs  of  life,  people  as  they  go  along  roads  must  ex- 
pect, or  put  up  with,  such  mischief  as  reasonable  care  on  the  part  of 
others  cannot  avoid." 

In  Manzoni  v.  Douglas  (1880),  6  Q.  B.  D.  145;  50  L.  J.  Q.  B.  289, 


206  ACCIDENT. 


No.  1.  —  Davis  v.  Saunders.  —  Notes. 


the  same  principle  was  again  affirmed  by  a  Divisional  Court  of  the  Com- 
mon Pleas  Division,  consisting  of  Dexmax,  J.,  and  Lixdley,  J.  A 
horse  drawing  a  brougham  had,  for  some  unexplained  cause,  bolted.  The 
coachman  was  trying  his  best  to  stop  the  horse.  He  did  not  succeed. 
The  horse  fell  over  the  kerb  on  to  the  pavement  in  Cock  spur  Street; 
and  the  plaintiff,  who  was  walking  there,  was  knocked  down  from  behind. 
The  case  was  tried  at  the  Westminster  County  Court,  where  the  judge, 
upon  the  authority  of  Ham?nac7e  v.  White,  nonsuited  the  plaintiff. 
The  Divisional  Court  held  the  nonsuit  to  be  right. 

In  the  cases  above  cited  in  this  note,  the  person  charged  with  the 
damage  was  engaged  in  an  act  which  he  had  right  as  one  of  the 
public  to  do.  The  rule  above  stated  is  not  less  applicable  to  occur- 
rences arising  from  the  use  or  exercise,  by  the  defendant,  of  a  right  of 
private  property.  But  in  such  cases  there  is  a  different  and  more 
ready  presumption  of  negligence, — the  principle  of  res  ipsa  loquitur 
being  frequently  applied;  and.  in  effect,  the  duty  of  care  is  more 
exact. 

In  Byrne  v.  Boodle  (1863),  2  H.  &  C.  722,  33  L.  J.  Ex.  13,  the 
plaintiff  walking  along  the  public  street  was  damaged  by  a  barrel  of 
flour  falling  from  the  defendant's  warehouse  above  his  shop.  The  fact 
was  held  prima  facie  evidence  of  negligence. 

In  Scott  v.  London  Dock  Co.  (1865),  3  H.  &  C.  596,  31  L.  J.  Ex. 
17,  22,  a  custom  house  officer,  upon  his  lawful  business,  was  damaged 
by  the  fall  of  sugar  bags  from  a  lift  over  a  door  on  the  defendant's 
premises.  No  explanation  was  given  of  the  cause  of  the  occurrence. 
In  an  appeal  to  the  Exchequer  Chamber  from  the  Court  of  Exchequer, 
the  court  held  that  evidence  of  negligence  was  necessary  to  make  out 
the  plaintiff's  case;  but,  by  a  majority,  Cromptox,  Byles,  Blackburn 
and  Keating,  JJ.,  against  Erle,  C.  J.,  and  Mellor,  J.,  it  was  held 
that  the  fact  of  the  bags  falling  was  evidence  of  negligence  on  the  part 
of  the  defendant  or  his  servants. 

In  Briggs  v.  Oliver  (1866),  1  H.  &  C.  103,  35  L.  J.  Ex.  163,  the 
damage  was  occasioned  by  the  fall  of  a  packing  case  which  was  rested 
against  the  wall  of  the  defendant's  premises,  under  the  care  of  his 
servant  in  the  public  street.  The  Court  by  a  majority  —  PlGOTT  and 
Bramwell,  BB..  against  Martin,  B. — held  that  the  fact  was, 
against  the  defendant,  evidence  of  negligence. 

In  Kearney  v.  L.  B.  &  S.  C.  By.  Co.  (1870,  1871),  L.  11.  5  Q.  B.  411, 
6  Q.  15.  759,  the  circumstance  of  a  brick  falling  out  of  the  supports  of 
a  girder-bridge,  upon  a  person  in  the  public  road  under  the  bridge,  was 
held  evidence,  against  the  company,  of  negligence  on  their  part,  in 
not  keeping  the  bridge  in  proper  repair.  The  judgment  in  this  case- 
was  affirmed  in  the  Exchequer  Chamber. 


ACCIDENT.  207 


No.  1.  —  Davis  v.  Saunders. — Notes. 


The  case  i.s  different  where  the  negligence  to  be  inferred  from  the 
fact,  may  be  that  of  a  person  (e.  g.,  a  contractor)  for  whose  acts  the 
defendant  is  hot  responsible. 

In  Higgs  v.  Maynard  (1866),  14  W.  K.  610,  the  plaintiff,  who  was 
at  work  in  a  passage  where  he  had  right  to  be,  had  his  eye  damaged  by 
broken  glass  from  the  defendant's  window.  The  window  was  broken 
by  the  fall  of  a  ladder  from  the  inside,  but  there  was  nothing  to  show 
that  the  defendant  or  his'  sen  ants  had  anything  to  do  with  the  ladder. 
The  court  held  a  nonsuit  to  be  right. 

In  Welfare  v.  L.  B.  &  S.  C.  By.  Co.  (1869),  L.  E,  4  Q.  B.  693; 
38  L.  J.  Q.  B.  241,  an  intending  passenger  looking  at  the  time  tables  in 
a  Eailway  Station,  was  damaged  by  a  plank  and  roll  of  zinc  falling 
through  the  roof,  by  the  fault  (apparently  and  so  far  as  there  appeared 
to  be  any  fault)  of  a  man  on  the  roof,  who  was  presumably  in  the  employ 
of  a  contractor.  The  court  held  that  the  circumstance  did  not  consti- 
tute prima  fade  evidence  of  negligence  on  the  part  of  the  company. 

The  principle  of  the  above  rule  is  frequently  applied  in  cases  of 
damage  by  collision  between  ships.  Of  these  it  will  be  sufficient 
briefly  to  mention  a  few  examples. 

It  has  been  laid  down  by  the  judgment  of  the  Judicial  Committee  of 
the  Privy  Council  in  the  case  of  The  Marpesia  (1872),  L.  E.  4  P. 
C.  212,  219,  that  the  burden  of  proof  of  negligence  lies  in  the  first 
instance  on  the  party  seeking  to  be  indemnified  for  the  damage;  but 
when  a  prima  fade  case  of  negligence  and  want  of  due  seamanship  is 
shown,  the  burden  of  proving  inevitable  accident  lies  on  those  charged 
with  the  damage. 

In  the  case  of  The  William  Lindsay  (1873),  L.  E.  5  P.  C.  338, 
the  ship  charged  with  the  damage  had  been  moored  to  a  buoy  with  the 
sanction  of  the  authorities  of  the  port.  A  storm  being  expected,  the 
anchor  had  been  got  ready  to  drop.  The  shackle  band  of  the  buoy 
gave  way  under  the  stress  of  weather;  and,  on  the  anchor  being  let 
go,  the  windlass  jammed.  The  ship  was  then  driven  against,  and 
damaged,  another  ship  lying  at  moorings.  It  was  held  that  inevitable 
accident  was   established. 

In  the  case  of  the  Virgo  S.  S.  (1876),  35  L.  T.  x.  s.  519;  25  W.  E. 
397,  at  the  critical  moment  when,  under  the  circumstances,  the  helm 
had  to  be  starboarded,  the  steering  gear  was  found  to  have  gone  wrong. 
The  order  was  given  to  reverse  engines,  but  it  was  too  late  to  avoid 
the  collision.  It  was  proved  that  the  steering  gear  was  thoroughly 
good  in  every  respect  when  it  was  put  up,  that  it  had  been  surveyed 
from  time  to  time,  and  reported  to  be  in  perfect  condition.  The  cause 
of  the  failure  was  found  to  be  the  breaking  of  a  piece  of  iron,  in  the 
centre  of  which  was  discovered  two  small    flaws,  which  could  not  have 


208  ACCIDENT. 


No.  1. — Davis  v.  Saunders.  —  Notes. 


been  detected  b}7  any  means  previously.  Shortly  before  the  occurrence, 
and  to  get  out  of  the  way  of  some  barges,  the  helm  had  been  put  hard- 
a-port,  and  the  vessel  had  answered  her  helm  properly.  It  was  held 
that  the  burden  of  proof  of  inevitable  accident  was  satisfied.  The  cir- 
cumstances were  observed  to  be  similar  to  those  in  the  case  of  Head- 
/trad  v.  Midland  By.  Co.  (1867,  1869),  L.  R.  2  Q.  B.  412,  4  Q.  B. 
379,  38  L.  J.  Q.  B.  169,  where  the  Railway  Company,  being  sued  for 
damage  to  a  passenger  whom  they  carried,  was  exonerated  by  showing 
that  the  catastrophe  was  caused  by  the  breaking  of  a  tyre  through  a 
latent  defect  not  attributed  to  any  fault  of  the  manufacturer,  and  not 
to  be  detected  previously  to  the  breaking. 

AMERICAN   NOTES. 

The  general  rule  laid  down  by  the  principal  case  is  universally  recognized 
in  America. 

In  the  absence  of  negligence,  persons  engaged  in  the  prosecution  of  a  law- 
ful act  are  not  liable  for  an  accidental  injury  occurring  in  the  performance 
of  it.  ''The  authorities  all  agree,  that  an  injury  resulting  from  a  superior 
cause,  unmixed  with  negligence  from  the  defendant,  imposes  no  liability." 
Kay  on  Negligence  of  Imposed  Duties,  the  latest  text-writer  on  the  subject. 
bo  where  a  railroad  is  not  required  to  be  fenced,  the  company  will  not  he 
liable  for  killing  cattle  straying  on  it,  unless  negligent.  Williams  v.  Mirlir/an 
(  \  hi.  /.'.  Co.,  2  Michigan,  259  ;  55  Am  Dec.  59.  So  where  water,  falling  on 
noxious  substances  on  one's  land,  percolates  into  and  corrupts  another's  well. 
Brown  v.  I/lius,  27  Connecticut,  84  ;  71  Am.  Dec.  49.  So  in  respect  to  com- 
munication of  fire.  Fahn  v.  Reichart,  8  Wisconsin,  255;  76  Am.  Dec.  237.  So 
where  one's  property  is  carried  away  by  flood  and  deposited  on  the  land  of 
another  (unless  he  reclaims  the  property).  Sheldon  v.  Sherman,  42  New 
York,  484;  1  Am.  Rep.  569;  Livezey  v.  Philadelphia,  64  Penn.  St.  106;  3  Am. 
Rep.  578.  So  of  fire  by  sparks  from  a  steam  engine.  Hinds  v  Barton,  25 
New  York,  544.  So  of  damage  by  a  runaway  horse.  Brown  v.  Collins,  53 
New  Hampshire,  442;  16  Am.  Rep.  372;  Vincent  v.  Stinehour,  7  Vermont, 
62  ;  29  Am.  Dec.  145,  and  note,  149.  So  where  one  lawfully  defending  him- 
self struck  another,  mistaking  him  for  the  assailant.  Pax/on  v.  Boyer,  67 
Illinois,  132;  16  Am.  Rep.  615.  So  of  one  who  in  separating  his  dog  from 
another  while  fighting,  accidentally  hurts  a  bystander.  Brown  v.  Kendall,  6 
Cushing  (Mass.),  292.  So  an  innkeeper  is  not  liable  for  property  of  his  guests 
destroyed  without  his  negligence  by  accidental  fire.  Cutler  v.  Bonney,  30 
Michigan,  259  (disapproving  Hulelt  v.  Swift,  33  New  York,  571);  Merrill  v. 
Clayhorn,  23  Vermont,  177.  So  of  snow  sliding  from  a  roof.  Garland  v. 
Toivne,  55  New  Hampshire,  56 ;  20  Am.  Rep.  164.  So  of  a  wash-out  on  a 
railroad  caused  by  an  unprecedented  storm,  and  injuring  an  employee, 
Central,  Sfc.  Co.  v.  Kent,  87  Georgia,  402  ;  or  a  passenger,  Railroad  Co  v. 
Halloren,  53  Texas,  46  ;  37  Am.  Rep.  744.  So  of  an  explosion  of  goods  on  a 
carrier's  premises  injuring  other  premises.  Nitro-Glycerine  Case,  15  Wallace 
(U.  S.  Sup.  Ct.),  524. 


ACCIDENT.  209 


No.  1.  —  Davis  v.  Saunders.  —  Notes. 


To  the  same  effect,  The  Mollie  Mahler,  2  Bissell  (U.  S.  Circ),  288  ;  The  Lady 
Pike,  id.  141  ;  The  New  Jersey,  Olcott  (U.  S.  Circ),  448  ;  Fergusson  v.  Brent, 
12  Maryland,  33,  "an  opinion  characterized  by  fine  discrimination  and  by 
accurate  research."  1  Smith  Lead.  Cas.,  413  ;  Percival  v.  Hickey,  18  Johnson 
(New  York),  289;  Lewis  v.  Flint,  54  Michigan,  55;  Bennett  v.  Ford,  47 
Indiana,  2(34  (runaway  horse);  Sutton  v.  Bunnell,  111  Indiana.  243  (discharge 
of  pistol);  Baltimore,  $fc.  R.  Co.  v.  School  District,  96  Penn.  St.  65;  42  Am. 
Rep.  52!). 

Overflow  of  water  obstructed  by  a  dam,  across  an  abandoned  river  bed, 
which  was  lawful  when  built,  is  to  be  laid  to  the  account  of  Providence,  and 
not  to  the  hand  of  man,  if  it  would  not  have  happened  except  for  the  filling 
up  of  the  new  channel  of  the  river  by  natural  causes.  Payne  v.  Kansas  City, 
frc.  R.  Co.,  112  Missouri,  6  ;  17  Lawyers'  Rep.  Annotated  628. 

The  slipping  of  a  wagon  against  and  breaking  a  lamp  post,  owing  to  the 
slipperiness  of  the  street,  is  an  inevitable  accident.  Roche  v.  Milwaukee  Gas 
Co.,  5  Wisconsin,  55.  See  Strouse  v.  Whittlesey,  41  Connecticut,  559  ;  15  Am. 
Law  Reg.  (n.  s.),  33. 

A  learned  review  may  be  found  in  Bizzell  v.  Booker,  16  Arkansas,  308,  a 
case  where  campers  were  alleged  to  have  negligently  left  a  fire  burning  in  the 
woods,  which  communicated  to  and  destroyed  plaintiff's  property.  The  court 
said :  "  Where  one  is  doing  a  lawful  act,  or  an  act  not  mischievous,  rash. 
reckless,  or  foolish,  and  naturally  liable  to  result  in  injury  to  others,  he  is  not 
responsible  for  damages  resulting  therefrom  by  accident  or  casualty,  while 
he  is  in  the  exercise  of  such  care  and  caution  as  a  prudent  man  would 
observe,"  &c. 

By  "  accident "  is  meant  an  inevitable  occurrence,  not  to  be  foreseen  or 
prevented  by  vigilance,  care,  and  attention,  and  not  occasioned  or  contributed 
to,  in  any  manner,  by  the  act  or  omission  of  the  defendant,  his  agents,  ser- 
vants, or  employees.  Carroll  v.  Staten  Island  R.  Co.,  58  N.  Y.  126;  17  Am. 
Rep.  221.  An  accident  is  an  event  from  superior  causes.  Gaidt  v.  Humes,  20 
Maryland,  297.  Inevitable  accident  is  one  not  resulting  from  neglect  of  any 
duty.  Parrot/  v.  Wells,  15  Wallace  (82  U.  S.)  524;  Brown  v.  Collins,  53  New 
Hampshire,  442;  Searles  v.  Manhattan  Ry.  Co,  101  Xew  York,  661  ;  Ohio, 
fyc.  Co.  v.  Lackey,  78  Illinois,  55. 

But  where  a  violent  storm  renders  jettison  necessary,  to  save  the  rest  of  the 
cargo,  the  loss  is  excused.  Price  v.  Hartshorn,  44  New  York,  94 ;  4  Am.  Rep. 
6  b". 

Tt  has,  however,  been  held  that  a  carrier  is  liable  for  loss  by  fire  unless 
traced  to  lightning  or  other  superhuman  cause.  Miller  v.  Steam  Nav.  Co., 
10  Xew  York,  431  ;   Chicago,  #"c.  R.  Co.  v.  Sawyer,  69  Illinois,  285. 

So  the  fall  of  a  large  wooden  sign,  caused  by  an  ordinary  wind,  may  not  be 
deemed  an  act  of  God  or  inevitable  accident.  St.  Louis,  fyc.  R.  Co.  v. 
Hopkins,  54  Arkansas,  209 ;  12  Lawyers'  Rep.  Annotated,  189. 

The  collision  of  two  vessels  in  the  dark  is  not  an  act  of  God,  but  is  an 
inevitable  accident.     The  Morning  Light,  2  Wallace  (U.  S.  Sup.  Ct.),  560. 

But  the  act  must  be  lawful,  and  the  injury  unintentional  and  without  original 
design  naturally  rendering  the  injury  possible. 

VOL.  I.  —  14 


210  ACCIDENT. 


No.  2. —  The  Uhla.  —  Rule. 


N>  an  action  lies  for  an  accidental  injury  caused  by  the  glancing  of  a  bullet 
in  shooting  at  a  mark.  Welch  v.  Durand,  36  Connecticut,  182;  I  Am.  Rep.  55. 
This  is  put  on  the  ground  of  neglect,  as  to  time  and  place.  The  court  cite  a 
case  of  shooting  at  butts  with  bow  and  arrow.  Year  Book,  21  Hen.  VII., 28a. 
•So  in  Castle  v.  Duryea,  32  Barbour,  480,  the  defendant,  colonel  of  a  militia 
regiment,  was  held  liable  for  an  injury  by  a  bullet  from  a  gun  fired  in  a  gen- 
eral discharge,  by  his  order,  the  regiment  facing  the  spectators  about  three 
hundred  and  fifty  feet  distant.  So  in  Cole  x .  Fisher,  11  Massachusetts,  b>7. 
the  defendant,  for  the  purpose  of  drying  a  gun.  having  discharged  it  at  the 
door  of  his  shop,  near  the  highway,  causing  plaintiff's  horse,  standing  tied 
therein,  to  run  away  and  break  the  vehicle,  was  held  liable.  So  where  an 
infant  threw  a  piece  of  mortar  at  another,  not  intending  to  hurt  him.  Peter- 
son v.  Haffner,  59  Indiana,  130;  26  Am.  Rep.  81  ;  Conway  v.  Reed,  06  Mis- 
souri, 346;  27  Am.  Rep.  351.  The  same  principle  in  Coming  v.  Corning,  0 
New  York,  07;  Bullock  v.  Babcock,  '■>  Wendell  (Xew  York),  391.  So  where 
one  injures  another  in  righting  or  wrestling.  Adams  v.  Waggoner,  33  In- 
diana, 531  ;  Bell  v.  Hansley,  3  Jones  Law  (No.  Carolina),  131 ;  Dole  v.  Erskine, 
:'..">  New  Hampshire,  503.  Or  where  one  shoots  at  a  fox  and  kills  a  hound, 
Wright  v.  Clark,  50  Vermont,  130;  or  points  a  pistol  at  another.  Sutton  v. 
Bonnett,  111  Indiana,  213. 

Similar  in  principle,  but  involving  the  doctrine  of  proximate  and  remote 
cause  of  injury,  are  the  celebrated  Xew  York  cases  of  Vandenburgh  v.  Truax, 
1  Denio,  101,  and  Guille  v.  Swan,  19  Johnson,  381.  In  the  former  the  defend- 
ant in  a  quarrel  with  a  boy  in  the  street,  chased  him  into  plaintiff's  store, 
where  the  boy  in  endeavouring  to  evade  him,  ran  against  a  cask  of  wine, 
knocked  out  the  faucet,  and  caused  the  wine  to  escape.  In  the  latter  case, 
the  defendant,  an  aeronaut,  making  an  ascension,  descended  involuntarily  and 
violently  into  plaintiff's  garden,  and  crying  for  help,  a  crowd  of  persons 
rushed  in  and  trampled  the  growing  vegetables.  The  defendants  wrere  held 
liable  in  both  cases. 

No.  2.  —  THE  UHLA. 

(ADM.  1868.) 
IJULE. 

Where  such  ordinary  diligence  and  skill  as  persons  exer- 
cise, who  property  discharge  their  duty,  could  have  pre- 
vented the  disaster,  there  is  not  an  inevitable  accident. 

The  Uhla. 

19  Law  Times,  v.  s.  89. 
This  was  an  action  brought  in  the  Admiralty  Court  by  the  Fal- 
mouth Dock  Company  for  damage  caused  to  their  breakwater  by 
the  ship  Uhla,  which  during  a  gale  had  been   abandoned  by  the 
crew  and  left  beating  against  the  breakwater.     The  defences  were, 


ACCIDENT.  211 

No    2. —  The  Uhla. 


I  want  of  jurisdiction  in  the  court;  (2)  that  the  damage  was  the 
result  of  inevitable  accident. 

The  former  question  having  been  argued,  and  the  jurisdiction 
having  been  sustained  by  Dr.  Ltjshington,  upon  construction  of  the 
Admiralty  Court  Act,  1861,  the  evidence  was  gone  into  upon  the 
latter  defence. 

Dr.  LUSHINGTON  (addressing  the  Elder  Brethren  of  the  Trinity 
House)  said  :  Gentlemen,  —  That  damage  was  done  by  this  vessel 
"to  the  pier  or  jetty  or  breakwater  in  question  there  can  be  no  doubt 
whatever  ;  it  is  an  admitted  fact  in  the  case,  and  the  defence  on 
the  part  of  those  who  own  the  vessel  is  couched  in  the  following 
words :  "The  damage  proceeded  for  by  the  plaintiff's  was  not  caused 
hy  any  negligence  or  default  or  want  of  skill  on  the  part  of  the 
master  or  crew  of  the  Uhla,  but  was  the  result  of  inevitable  acci- 
dent." Therefore  we  have  to  try  whether  the  damage  was  occa- 
sioned by  any  negligence,  by  any  default,  or  by  any  want  of  skill 
on  the  part  of  the  master  or  of  the  crew.  Then  as  to  what  inevit- 
able accident  is  :  you  have  already  had  one  authority  quoted  to 
you;  but  I  should  prefer  to  bring  under  your  consideration  another 
and  an  earlier  one.  I  had  occasion  to  lay  down  this  law  very  early 
in  the  time  that  I  exercised  the  duties  of  the  judge  of  the  Admir- 
alty Court,  and  after  great  care  and  great  caution,  and  as  it  has 
jiever  been  overruled,  of  course  I  maintain  and  persist  in  it  at  the 
present  time :  "  Inevitable  accident  is  that  which  a  party  charged 
with  an  offence  could  not  possibly  prevent  by  the  exercise  of  ordi- 
nary care,  caution,  and  maritime  skill.  It  is  not  enough  to  show 
that  the  accident  could  not  be  prevented  by  the  party  at  the  very 
moment  it  occurred,  but  the  question  is,  what  previous  measures 
liave  been  adopted  to  render  the  occurrence  of  it  less  probable." 
Now  it  appears  to  me  that  to  a  certain  extent  the  doctrine  laid 
down  in  that  case  is  applicable  to  the  present,  but  there  is  another 
case  which  was  decided  subsequently,  —  the  case  of  the  Europa,  14 
Jut.  629,  which  I  wish  also  to  request  you  to  consider.  "Inevit- 
able accident  is  where  one  vessel  doing  a  lawful  act  without  any 
intention  of  harm;  and  using  proper  precautions  to  prevent  danger, 
unfortunately  happens  to  run  into  another  vessel."  Of  course  we 
are  speaking  of  collisions,  but  the  doctrine  is  the  same.  The 
caution  which  the  law  requires  is  not  the  utmost  that  can  be  used, 
it  is  sufficient  that  it  be  reasonable,  such  as  is  usual  in  ordinary 
and  similar  cases,  such  as  has  been  found  by  long  experience-  in  the 
-ordinary  course  of  things  to  answer  the  end.  that  end.  being  the 


212  ACCIDENT. 


No.  2.  — The  TJhla. 


safety  of  life  and  property.  I  bring  your  attention  particularly  to 
that,  because  we  must  not  expect,  in  vessels  of  this  kind,  that  the 
master  and  crew  should  be  possessed  of  such  extraordinary  nauti- 
cal skill  that  they  would  be  quite  certain  to  discover  that  which  is 
the  best  to  be  done,  and  quite  certain  to  do  it  ;  but  we  look  at  the 
general  degree  of  intelligence,  care,  and  caution  which  we  find  in 
people  of  the  same  description.  Having  brought  these  matters  to 
your  consideration,  I  have  very  little  to  say,  because  everything 
has  been  said  by  counsel  that  can  be  said  ;  but  the  questions  I 
must  put  to  you  are  these.  I  shall  ask  your  opinion  whether  you 
think  that  the  not  letting  out  more  chain  was  either  an  act  of 
neo'lioence  or  an  act  of  want  of  skill.  That  more  chain  could  have 
been  paid  out  (and  this  is  the  only  part  of  the  subject  upon  which 
I  will  venture  an  opinion)  I  cannot  entertain  much  doubt,  because 
there  was  a  great  deal  more  chain  ready  to  be  let  out;  and  con- 
sidering the  state  of  things,  at  least  early  in  the  morning,  I  cannot 
understand  if  it  was  proper  to  let  out  more  chain,  which  is  entirely 
for  your  consideration,  why  it  should  not  have  been  done.  Dr. 
Deane  relied  very  much,  at  the  conclusion  of  his  speech,  on  the 
state  of  the  wind  and  weather,  and  he  contended  that  the  state  of 
the  wind  and  weather  was  a  mitigating  circumstance  ;  that  in  such 
a  state  of  wind  and  weather  as  there  was  here,  which  was  no  doubt 
very  tempestuous,  there  was  an  excuse  for  not  adopting  those 
measures  which  were  otherwise  entirely  proper  and  fit  to  be 
adopted,  and  that  that  ought  to  be  received  as  an  excuse.  Now 
that  is  a  doctrine  we  must  look  upon  with  great  care  and  caution, 
because,  although  I  should  be  exceedingly  reluctant  to  strain  the 
principle  too  severely  against  the  owners  or  masters  of  any  ves- 
sel that  comes  into  collision,  yet  if  we  relax  it  so  far,  and  were  to 
introduce  a  lax  system  into  our  mercantile  navy,  the  mischief  in- 
deed would  be  very  great.  With  respect  to  striking  the  yards,  I 
have  only  to  say  I  ask  your  opinion,  and  with  respect  to  the  sails 
the  same.  The  simple  question  I  put  to  you  is,  was  it  right  or 
wrong  to  do  it,  or  was  the  omission  right  or  was  the  omission  from 
want  of  nautical  skill  ?  Then,  with  respect  to  the  abandonment  of 
the  ship,  I  do  not  know  that  it  is  necessary  for  me  to  press  that 
subject  upon  you,  unless  it  can  be  brought  to  this  conclusion,  that 
the  abandonment  of  the  ship  was  an  unnecessary  and  an  improper 
act  on  the  part  of  the  master  and  crew.  I  am  not  prepared  to  give 
an  opinion  upon  that  point ;  I  would  rather,  if  it  is  necessary,  have 
your  opinion  upon  it.     It  has  also  been  said  here  that  the  state  of 


ACCIDENT.  211 


No.  2. —  The  Uhla.  —  Notes. 


the  vessel  and  crew  were  such,  that  what  happened  could  not  he 
avoided.  If  you  are  of  opinion  from  the  state  of  the  crew,  or  the 
injured  state  of  the  vessel,  it  was  incompetent  to  do  that  which 
ought  to  have  heen  done,  and  that  that  is  clearly  proved  to  he  so, 
that  ought  to  operate  as  an  excuse  for  not  doing  what  I  have  just 
mentioned  to  you.  If  you  come  to  that  conclusion,  of  course  it 
would  he  right  to  say  that  the  vessel  was  so  damaged  and  the  crew 
so  injured  that  they  were  incompetent  to  do  their  duty.  If  the 
crew  were  injured  by  accident,  of  course  they  are  not  to  blame. 
But  you  must  come  to  that  conclusion  after  having  well  considered 
that  it  was  in  consequence  of  the  injured  state  of  the  vessel  that 
the  crew  could  not  perform  their  duty. 

The  court  and  the  Elder  Brethren  then  retired,  and  upon  their 
return 

Dr.  Lushington  said :  I  am  advised  by  the  Trinity  Masters  that 
the  defence  in  this  case  is  not  made  out,  —  that  it  was  not  a  case  of 
inevitable  accident.     Therefore  I  must  pronounce  for  the  damage. 

Dr.  Deane.  May  I  ask  the  court  what  the  reasons  are,  —  what 
the  Uhla  ought  to  have  done  ? 

Dr.  Lushingtox.  I  do  not  know  whether  I  could  express  in 
sufficiently  clear  and  definite  terms  the  opinion  which  the  Trinity 
Masters  have  come  to  :  I  am  afraid  to  undertake  that.  I  could 
not  defend  their  opinion  in  the  way  in  which  they  defend  it 
themselves. 

Dr.  Deane.  AVe  are  placed  in  this  position.  There  is  no  cross 
action  here.  The  other  side  ought  to  have  made  out  the  omission 
of  something  or  the  commission  of  something. 

Dr.  Lushingtox.  I  will  state  one  omission  ;  they  think  you 
ought  to  have  slipped  and  made  sail,  and  if  you  had  done  that,  the 
tide  would  have  brought  you  up  into  a  place  of  safety. 

ENGLISH  NOTES. 

In  the  Virgil  (Dec.  1842),  7  Jur.  1174,  Dr.  Lushington  laid  down 
the  rule  as  follows:  "In  law,  inevitable  accident  is  that  which  a 
party  charged  with  an  offence  could  nor  possibly  prevent  by  the  exer- 
cise of  ordinary  care,  caution,  and  maritime  skill;  it  is  not  inevitable 
accident  if  a  vessel  sailing  eight  or  nine  knots  an  hour,  when  she  ought 
to  be  sailing  three  or  four. —  it  is  not  enough  to  say  'I  could  not  pre- 
vent the  accident  at  the  very  moment  it  occurred;'  could  you  have 
previously  adopted  measures  to  render  the  occurrence  of  it   less  proba« 


214  ACCIDENT. 


No.  2.  —  The  Uhla.  —  Notes. 


ble."  In  the  ease  in  question,  the  Trinity  Masters  found  that  at  the? 
time  of  the  collision  the  Virgil  (the  vessel  charged)  was  sailing  free, 
the  other  vessel  being  close-hauled  upon  the  port  tack;  and  that  the- 
former  was  carrying  studding  sails.  The  defence  being  that  the  night 
was  dark  and  hazy,  they  considered  the  Virgil  ought  to  have  been  under 
more  reduced  sail,  and  that  she  was  to  blame.  With  this  opinion  Dr. 
Li  shington  concurred. 

This  ruling  of  Dr.  Lushixgtox  is  quite  in  accordance  with  the  cases? 
where,  as  well  in  the  Common  Law  Court  as  in  the  Admiralty  Court, 
it  has  been  held  that  although  the  complaining  party  has  been  to  blame* 
in  the  origin  of  a  dangerous  situation;  yet  if  the  other  could,  by  the  use- 
of  ordinary  care,  have  averted  the  danger,  he  will  be  responsible  (and  in 
admiralty  cases  solely  responsible)  for  the  ensuing  damage.  Of  this 
principle  a  single  instance  is  afforded  by  Davies  v.  Mann  (the  oft  quoted 
donkey  case,  Ex.  1842),  10  M.  &  W.  546;  12  L.  J.  Ex.  10,  where  a 
donkey  tethered  on  a  highway  by  the  imprudent  act  of  its  owner,  was 
run  over  by  a  wagon  negligently  driven  by  the  defendant's  servant.  So, 
where  a  barge  had  negligently  got  in  the  way  of  a  steamer,  the  latter  was, 
on  the  common-law  grounds  of  liability,  and  independently  of  the  rules 
of  the  Merchant  Shipping  Act,  held  liable  for  a  collision  which  she  had 
the  ready  means  of  averting.  Tuff  v.  Warman  (1857,  1858),  2  ( '.  B., 
n.  s.  740;   5  C.  B.,  n.  s.  573;  26  L.  J.  C.  P.  263;  27  L.  .1.  C  P.  222. 

The  same  principle  was  applied  by  the  House  of  Lords  in  Cayz&rv, 
Catron  Compamj  (1884),  9  App.  Cas.  873;  54  L.  J.  P.  D.  &  A.  18,  the 
case  of  a  collision  between  two  steamships,  A.  and  15.,  on  the  Thames.  It 
had  been  contended  on  the  part  of  vessel  A.,  that  vessel  B.  had  placed 
herself  where  she  was  by  a  breach  of  the  Thames  navigation  rules.  Put 
the  House  of  Lords,  without  deciding  whether  this  contention  was  sup- 
ported by  the  evidence  or  not,  held  that,  as  vessel  A.  could  have  avoided 
the  collision  by  ordinary  care,  and,  on  the  contrary,  produced  the  col- 
lision by  the  adoption  of  a  dangerous  and  reckless  course,  vessel  A.. 
and  not  vessel  B..  was  responsible  for  the  calamity  which  ensued.  But 
in  the  case  of  the  Bywell  Castle  (C  A.  1878),  4  B.  D.  219,  the  Court 
of  Appeal  laid  down  this  qualification  of  the  rule:  that  where  a  ship 
by  wrong  manoeuvres  has  placed  another  in  a  position  of  extreme  danger, 
the  latter  is  not  to  be  held  responsible  if  she  is  not  manoeuvred  with 
perfect  skill  and  presence  of  mind. 

Smith  v.  L.  X-  S.  W.  By.  Co.  (Ex.  Ch.  from  C.  P.  1870),  L.  R.,  6  C.  P. 
14;  40  L.  J.  C.  P.  21,  may  be  cited  as  an  illustration  of  this  rule.  Tit 
an  exceptionally  dry  season  workmen  employed  by  a  railway  company  to 
trim  their  banks  and  hedges,  had  left  the  trimmings  lying  by  the  side  <»f 
the  railway  for  a  fortnight.  The  dry  and  inflammable  heaps  so  left  lying 
had  been  ignited  by  sparks  from  a  passing  engine,  and  the  fire  burned 


ACCIDENT.  -  1  5 


No.  2. —  The  UWa.  —  Notes. 


the  hedge,  and  was  thence  carried  by  a  high  wind  across  a  stubble  field 
and  a  public  road,  and  destroyed  the  goods  of  the  plaintiff  in  a  cottage 
about  two  hundred  yards  from  the  railway.  The  circumstance  of  the  dry 
trimmings  having  been  so  left  was  held  evidence,  to  go  to  the  jury,  of 
negligence  as  the  proximate  cause  of  the  loss;  and  the  plaintiff,  having 
a  verdict,  was  allowed  to  hold  it. 

AMERICAN   NOTES. 

This  exception  has  been  applied  to  carriers.  Thus  a  carrier  is  liable  for 
loss  occasioned  by  natural  elements,  which  might  have  been  avoided  by  his 
exercise  of  proper  precautions.  As  where  the  transportation  is  unnecessarily 
delayed,  and  goods  are  consequently  subjected  to  damage.  Michaels  v.  N.  Y. 
Cent.  R.  Co.,  30  New  York,  564;  86  Am.  Dec.  415;  American  Express  Co.  v. 
Smith,  33  Ohio  St.  511;  31  Am.  Rep.  561;  Wolf  v.  Am.  Exp.  Co.,  43  Mis- 
souri, 421  ;  97  Am.  Dec.  406,  and  note,  409 ;  Richmond,  Sfc.  R.  Co.  v.  Benson, 
86  Georgia,  203;  22  Am.  St.  Rep.  446;  or  an  unusually  low  tide  brings  a 
vessel  in  contact  with  a  timber  projecting  from  a  wharf,  New  Brunswick,  ^r. 
Co.  v.  Tiers,  4  Zabriskie  (New  Jersey),  607  ;  61  Am.  Dec.  391,  citing  For- 
ward v.  Plttard  :  or  a  vessel  is  unseaworthy,  Packard  v.  Taylor,  35  Arkansas, 
402  ;  37  Am.  Rep.  37  ;  or  goods  are  negligently  allowed  to  remain  ou  a  wharf, 
Morgan  v.  Dibble,  29  Texas,  107  ;  91  Am.  Dec.  261,  268  ;  or  a  vessel  runs  on  a 
rock  marked  by  a  buoy,  Fergusson  v.  Brent,  12  Maryland,  9 ;  71  Am.  Dec.  582. 

The  same  was  held  in  respect  to  a  warehouseman,  in  respect  to  goods 
allowed  to  remain  on  a  wharf  and  there  injured  by  an  unprecedentedly  high 
tile.  Merchants',  fyc.  Co.  v.  Story,  50 Maryland,  1:  33  Am.  Rep.  293.  Here  the 
wharf  had  been  submerged  before,  then-  were  signs  of  a  high  tide,  and  there 
was  time  for  the  removal  of  the  goods  to  a  higher  and  safe  part  of  the  wharf. 
So  of  a  washout  of  a  railway  embankment  by  an  unprecedented  storm,  the 
provision  for  drainage  at  the  point,  however,  being  defective.  Philadelphia, 
Sec.  R.  Co.  v.  Anderson,  91  Perm.  St.  351 ;  39  Am.  Rep.  787.  See  also  Wolf 
v.  Am.  Exp.  Co.,  13  Missouri,  121  ;  Daniels  v.  Ballantine.  23  Ohio  State,  532; 
Michigan  Cent.  R.  Co.  v.  Burrows,  33  Michigan,  6  ;  and  see  note  37  Am.  Rep.  719. 

An  accident  is  an  occurrence  which  happens  unexpectedly  from  the  uncon- 
trollable operations  of  nature  alone,  and  without  human  agency;  or  resulting 
undesignedly  and  unexpectedly  from  human  agency  alone,  or  from  the  joint 
operation  of  both.  Morris  v.  Piatt,  32  Connecticut,  85.  An  unforeseen  and  un- 
expected event  occurring  externally  to  the  person  affected  by  it,  and  of  which 
his  agency  is  not  the  proximate  cause.  Koppcr  v.  Dyer,  59  Vermont,  177  ;  59 
Am.  Rep.  712.  Not  that  which  was  physically  impossible  in  the  nature  of 
things  to  prevent,  but  not  occasioned  in  any  degree,  either  remotely  in- 
directly, by  want  of  care  or  skill  such  as  the  law  holds  every  man  bound 
to  exercise.  Dygert  v.  Bradley.  8  Wendell  (New  York),  173,  citing  Wakeman 
v.  Robinson,  1  Bing.  213.  A  casualty  preventable  by  known  and  proper  means 
is  not  an  "  inevitable  accident."     Ladd  v.  Foster,  31  Fed.  Rep.  827. 

A  case  much  in  point  is  Washburn  v.  Oilman,  61  Maine,  163;  18  Am.  Rep. 
216,  where  the  defendant  was  held  liable  for  injury  by  refuse  from  his  mill. 


216  ACCIDENT. 


No.  3.  —  Forward  v.  Pittard.  —  Rule. 


deposited  without  care  or  oversight  on  the  ice  in  a  stream,  and  washed  on  his 
neighbour's  land  below  by  a  freshet.  "  The  defendant  is  not  to  be  held  respon- 
sible for  the  freshet,"  said  the  court,  "  but  as  freshets  are  of  frequent  occur- 
rence, he  is  bound  to  know  that  fact  equally  as  any  other  fact  occurring  in  the 
course  of  nature,  and  he  is  liable  for  negligently  leaving  his  drift  stuff,"  &c. 
See  also  Blzzell  v.  Booker,  16  Arkansas,  308,  ante,  p.  209,  recognizing  the  dis- 
tinction of  the  principal  case. 


No.  3.  —  FOEWAED  v.  PITTAED. 
(K.  b.  1783.) 

No.  4.  —  NUGENT  v.  SMITH. 

(c.  a.  1876.) 

RULE. 

A  common  carrier  is  responsible  for  the  goods  committed 
to  him,  at  all  events,  except  the  act  of  God  or  of  the  king's 
enemies.  He  is  therefore  liable  for  events  which,  though 
not  preventable  by  him,  are  assignable  to  the  intervention 
of  man  (other  than  the  king's  enemies),  as,  for  instance,  a 
fire  not  proved  to  have  been  caused  by  lightning  or  other 
inevitable  cause  of  purely  natural  agency. 

But  he  is  not  liable  for  an  accident  as  to  which  he  can 
show  that  it  is  due  to  natural  causes  directly  and  ex- 
clusively, without  human  intervention,  and  that  it  could 
not  have  been  prevented  by  any  amount  of  foresight,  pains, 
and  care,  reasonably  to  be  expected  of  him. 

Forward  v.  Pittard. 
1  T.  R.  27;  1  R.  R.  146. 

This  was  an  action  on  the  case  against  the  defendant  as  a  com- 
mon carrier,  for  not  safely  carrying  and  delivering  the  plaintiff's 
goods.  On  the  trial  the  jury  found  a  verdict  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  court  on  the  following  case :  — 

The  defendant  was  a  common  carrier  from  London  to  Shafts- 
bury.  On  the  14th  of  October,  1784,  the  plaintiff  delivered  to  him 
on  Wevhill  twelve  pockets  of  hops,  to  be  carried  by  him  to  An- 
dover,  and  to  be  by  him  forwarded  to  Shaftsbury  by  his  public 
road    wagon,   which    travels    from    London    through    Andover   to 


ACCIDENT.  217 


No.  3.  —  Forward  v.  Pittard. 


Shaftsbury.  By  the  course  of  travelling  the  wagon  was  not  to 
leave  Andover  until  the  Saturday  evening  following.  In  the  night 
of  the  following  day  after  the  delivery  of  the  hops  a  fire  broke  out 
in  a  booth  at  the  distance  of  one  hundred  yards  from  the  booth  in 
which  the  defendant  had  deposited  the  hops,  which  burnt  some 
time  with  unextingnishable  violence,  and  during  that  time  com- 
municated itself  to  the  booth  in  which  the  defendant  had  deposited 
the  hops,  and  entirely  consumed  them,  without  any  negligence  in 
the  defendant.     The  fire  was  not  occasioned  by  lightning. 

At  the  conclusion  of  the  argument, 

Lord  Mansfield  observed  :  There  is  a  nicety  of  distinction 
between  the  act  of  God  and  inevitable  necessity.  In  these  cases 
actual  negligence  is  not  necessary  to  support  the  action. 

The  court  took  time  for  consideration  ;  and  on  a  subsequent  day 

Lord  Mansfield  delivered  the  unanimous  judgment  of  the 
court. 

After  stating  the  case  —  The  question  is,  whether  the  common 
carrier  is  liable  in  this  case  of  fire?  It  appears  from  all  the  cases 
for  one  hundred  years  back,  that  there  are  events  for  which  the 
carrier  is  liable  independent  of  his  contract.  By  the  nature  of  his 
contract,  he  is  liable  for  all  due  care  and  diligence ;  and  for  any 
negligence  he  is  suable  on  his  contract.  But  there  is  a  further 
degree  of  responsibility  by  the  custom  of  the  realm,  that  is,  by  the 
common  law;  a  carrier  is  in  the  nature  of  an  insurer.  It  is  laid 
down  that  he  is  liable  for  every  accident,  except  by  the  act  of  God, 
or  the  king's  enemies.  Now  what  is  the  act  of  God  ?  I  consider 
it  to  mean  something  in  opposition  to  the  act  of  man :  for  every- 
thing is  the  act  of  God  that  happens  by  his  permission  ;  everything, 
by  his  knowledge.  But  to  prevent  litigation,  collusion,  and  the 
necessity  of  going  into  circumstances  impossible  to  be  unravelled, 
the  law  presumes  against  the  carrier,  unless  he  shows  it  was  done 
by  the  king's  enemies,  or  by  such  act  as  could  not  happen  by  the 
intervention  of  man,  as  storms,  lightning,  and  tempests. 

If  an  armed  force  come  to  rob  the  carrier  of  the  goods,  he  is 
liable :  and  a  reason  is  given  in  the  books,  which  is  a  bad  one,  viz., 
that  he  ought  to  have  a  sufficient  force  to  repel  it :  but  that  would 
be  impossible  in  some  cases,  as  for  instance  in  the  riots  in  the  year 
1780.  The  true  reason  is,  for  fear  it  may  give  room  for  collusion, 
that  the  master  may  contrive  to  be  robbed  on  purpose,  and  share 
the  spoil. 


218  ACCIDENT. 


No.  4.  —  Nugent  v.  Smith. 


In  this  case  it  does  not  appear  but  that  the  fire  arose  from  the 
act  of  some  man  or  other.  It  certainly  did  arise  from  some  act  of 
man  ;  for  it  is  expressly  stated  not  to  have  happened  by  lightning. 
The  earlier,  therefore,  in  this  case  is  liable,  inasmuch  as  he  is  liable 
for  inevitable  accident.  Judgment  fur  the  plaintiff. 


Nugent  v.   Smith. 

1  C.  P.  I).  10,  42.5  ;  45  L.  J.  Q.  B.  I).  19,  697. 

This  was  an  action  against  the  defendant  as  secretary  of  a  com- 
pany who  advertised  a  line  of  steamers  to  run  between  London  and 
Aberdeen,  for  the  conveyance  of  passengers  and  goods,  to  recover 
damages  for  the  loss  of  a  mare. 

The  cause  was  tried  before  Bkett,  J.,  at  the  sittings  in  London 
after  Hilary  Term,  1874,  when  a  verdict  was  entered  for  the  defen- 
dant, leave  being  reserved  to  the  plaintiff  to  move  to  enter  the  verdict 
for  him  upon  certain  findings  of  the  jury. 

The  case  was  argued  upon  a  rule  accordingly. 

The  facts  appear  from  the  judgment  of  COCKBURN,  C.  J.,  given 
below. 

Hall  and  Douglas  Walker,  for  the  defendant,  referred  to  the  fol- 
lowing authorities  :  Liver  Alkali  Co.  v.  Johnson,  L.  R.,  7  Ex.  267  ; 
in  error,  9  Ex.  33S  ;  Morse  v.  Slue,  3  Ker.  72,  112,  135  ;  1  Ventr. 
190,  238;  1  Mod.  85;  2  Lev.  69;  the  judgment  of  Lord  Holt  in 
Coggs  v.  Bernard,  2  Ld.  Raym.  909  ;  1  Salk.  26  ;  Jones  on  Bailments, 
103;  Story  on  Bailments,  §§489,  523,  900;  Angell  on  Carriers, 
§§  149,  150,  151,  154,  158  ;  Lane  v.  Cotton,  1  Ld.  Raym.  646,  653  ; 
Abbott  on  Shipping  (8th  ed.),  345,  882  ;  Pickering  v.  Barclay,  2  Roll. 
Abr.  248  ;  Sty.  182  ;  Barclay  v.  Y-Gana,  8  Doug.  389  ;  Lavaroni  v. 
Drury,  8  Ex.  166  :  22  L.  J.  (Ex.)  2  ;  M'Lachlan  on  Shipping.  337  ; 
Bacon's  Abridgment,  Carriers ;  Benett  v.  Peninsular  and  Oriental 
Steam  Hunt  Co.,  6  ( '.  B.  775  ;  IS  L.  J.  C.  P.  85  ;  Crouch  v.  London 
and  North  Western  By.  Co.,  14  C.  B.  255  ;  23  L.  J.  C.  P.  73  ;  For- 
ward v.  Pitta rd,  1  T.  R.  27  ;  Pianeiani  v.  London  and  South  West- 
ern Tig.  Co.,  18  C.  B.  226  ;  Amies  v.  Stevens,  1  Str.  127  ;  Trent  and 
Mersey  Navigation  Co.  v.  Wood,  3  Esp.  127  ;  4  Doug.  287  ;  Smith 
v.  Shepherd,  Abbott  on  Shipping  (11th  ed.),  338  ;  Oakley  v.  Ports- 
mouth and  Byde  Steam  Packet  Co.,  11  Ex.  618;  25  L.  J.  Ex.  99; 
Colt  v.  M'Mechen,  -Tubus.  Rep.  (X.  Y.)  160  ;   Parsons  on  Shipping. 


ACCIDENT.  219 


No  4.  —  Nugent  v    Smith. 


?/. 


ed.  1869,  c.  7,  p.  253  ;  Kendall  v.  London  and  Smith  Western  I! 
Co.,  L.  It.,  7  Ex.  373  ;  Blower  v.  Great  Western  Ry.  Co.,  L.  It.,  7  C  1'. 
855;  Lawrie  v.  Douglas,  15  M.  &  W.  746;  Notara  v.  Henderson, 
L.  R,  5  Q.  B.  346;  in  error,  7  Q.  15.  225  ;  Grill  v.  General  Iron  Screw 
Colliery  Co.,  L.  E.,  1  C.  P.  600  ;  in  error,  3  C.  P.  476. 

Cohen,  Q,  C;  and  Lanyon,  fur  the  plaintiff,  relied  upon  the  judg- 
ment of  the  Court  of  Queen's  Bench  in  Lloyd  v.  Guibert,  E.  E.,  1 
ty.  B.  115.  Cur.  adv.  milt. 

On  the  2nd  of  November,  1875,  the  judgment  of  the  Court  of 
Common  Pleas  —  the  Court  consisting  of  Brett  and  Denman,  JJ. 
- — was  delivered  by  Brett,  J.  On  an  elaborate  argument,  the 
Court  came  to  the  conclusions,  1st,  that  the  shipowner,  by  carrying 
goods  for  hire,  without  having  made  any  express  stipulation  to  the 
contrary,  was  subject  to  the  liability  of  a  common  carrier  ;  and 
2ndly,  that  injuries  not  having  been  shown  to  have  arisen  from  the 
"act  of  God,"  the  defendant  was  liable. 

The  defendant  appealed  to  the  Court  of  Appeal,  and  in  the  course 
of  the  argument  it  was  conceded  that  the  defendant,  as  owner  of 
a  general  ship,  was  a  common  carrier,  although  one  of  the  ter- 
mini was  beyond  the  realm.  The  question  whether  the  circum- 
stances came  within  the  exception  of  the  "act  of  God"  was  fully 
argued.  On  the  29th  of  May,  1876,  the  following  judgments  were 
delivered  :  — 

COCKBURN,  ( '.  J.  This  case  involves  a  question  of  considerable 
importance  as  regards  the  law  relating  to  carriers  by  sea  ;  but  the 
facts  are  few  and  simple.  The  plaintiff  being  the  owner  of  two 
horses,  and  having  occasion  to  send  them  from  London  to  Aber- 
deen, shipped  them  on  board  a  steamship  belonging  to  the  com- 
pany of  which  the  defendant  is  the  representative,  plying  regularly 
as  a  general  ship  between  the  two  ports.  The  horses  .were  shipped 
without  any  bill  of  lading.  In  the  course  of  the  voyage  a  storm  of 
more  than  ordinary  violence  arose  ;  and  partly  from  the  rolling  of 
the  vessel  in  the  heavy  sea,  partly  from  struggling  caused  by  exces- 
sive fright,  one  of  the  animals,  a  mare,  received  injuries  from  which 
she  died.  It  is  to  recover  damages  in  respect  of  her  loss  that  this 
action  is  brought. 

Tha  jury,  in  answer  to  a  question  specifically  put  to  them,  have 
expressly  negatived  any  want  of  due  care  on  the  part  of  the  defen- 
dant, either  in  taking  proper  measures   beforehand  to  protect  the 


220  ACCIDENT. 


No.  4.  —  Nugent  v.  Smith. 


horses  from  the  effect  of  tempestuous  weather,  or  in  doing  all  that 
could  be  done  to  save  them  from  the  consequences  of  it  after  it  had 
come  on.  A  further  question  put  to  the  jury  was,  whether  there 
was  any  known  means,  though  not  ordinarily  used  in  the  convey- 
ance of  horses  by  people  of  ordinary  care  and  skill,  by  which  the 
defendant  could  have  prevented  the  injury  to  the  mare  ;  but  to  this 
question  the  jury  returned  no  answer. 

The  question  is,  whether  on  this  state  of  facts  the  shipowners  are 
liable. 

For  the  defendant  it  was  insisted  that  the  storm  which  was  the 
primary  and,  in  a  partial  degree,  the  proximate  cause  of  the  loss, 
must  be  taken  to  have  been  an  "act  of  God"  within  the  legal 
meaning  of  that  term,  so  as,  all  due  care  having  been  taken  to  con- 
vey the  mare  safely,  to  afford  immunity  to  the  defendants,  as  car- 
riers, from  liability  in  respect  of  the  loss  complained  of.  And 
the  question  to  be  determined  is  whether  this  contention  is  well 
founded.    " 

The  judgment  of  the  Common  Pleas  Division  in  favour  of  the 
plaintiff,  as  delivered  by  Mr.  Justice  Brett,  involves,  if  I  rightly 
understand  it,  the  following  propositions :  1.  That  the  Roman 
law  relating  to  bailments  has  been  adopted  by  our  courts  as  part 
of  the  common  law  of  England;  2.  That  by  the  Roman  law  the 
owners  of  all  ships,  whether  common  carriers  or  not,  are  equally 
liable  for  loss  by  inevitable  accident ;  3.  That  such  is  the  rule  of 
English  law,  as  derived  from  the  Roman  law,  and  as  evidenced  by 
English  authorities;  4.  That  to  bring  the  cause  of  damage  or  loss 
within  the  meaning  of  the  term  "act  of  God,"  so  as  to  give 
immunity  to  the  carrier,  the  damage  or  loss  in  question  must  have 
been  caused  directly  and  exclusively  by  such  a  direct  and  violent 
and  sudden  and  irresistible  act  of  nature,  as  the  defendant  could 
not  by  any  .amount  of  ability  foresee  would  happen  ;  or,  if  lie 
could  foresee  that  it  would  happen,  he  could  not  by  any  amount 
of  care  and  skill  resist,  so  as  to  prevent  its  effect;  5.  That, 
notwithstanding  the  inability  of  the  jury  to  agree  to  an  answer 
to  the  fifth  question  left  to  them,  the  defendant  has  in  this  case 
failed  to  satisfy  the  burden  of  proof  cast  upon  him,  so  as  to  bring 
himself  clearly  within  the  definition,  as  it  is  impossible  to  say 
that  no  human  ability  could  foresee  the  reasonable  probability 
of  the  happening  of  rough  weather  on  the  voyage,  and  that  a 
horse  at  sea  might  be  frightened  by  it,  or  that  no  human  ability 


ACCIDENT.  22  L 

No.  4.  —  Nugent  v.  Smith. 


could  prevent  injury  to  a  frightened  horse  in  such  weather  as 
occurred. 

In  no  part  of  this  reasoning  am  I  able  to  concur.      But  before   1 

proceed  to  deal  with  it,  I  must  observe  that  as  the  vessel  by  which 
the  mare  was  shipped  was  one  of  a  line  of  steamers  plyiu"  habitu- 
ally between  given  ports,  and  carrying  the  goods  of  all  comers,  as 
a  general  ship,  and  as  from  this  it  necessarily  follows  that  the  own- 
ers were  common  carriers,  it  was  altogether  unnecessary  to  the 
decision  of  the  present  case  to  determine  the  question,  so  elaborate  ly 
discussed  in  the  judgment  of  Mr.  Justice  Brett,  as  to  the  liability 
of  the  owner  of  a  ship,  not  being  a  general  ship,  but  one  hired  to 
carry  a  specific  cargo  on  a  particular  voyage,  to  make  good  loss  or 
damage  arising  from  inevitable  accident. 

The  question  being,  however,  one  of  considerable  importance, 
though  its  importance  is  materially  lessened  by  the  general  practice 
of  ascertaining  and  limiting  the  liability  of  the  shipowner  by  char- 
ter party  or  bill  of  lading,  and  the  question  not  having  before  pre- 
sented itself  for  judicial  decision,  I  think  it  right  to  express  my 
dissent  from  the  reasoning  of  the  Court  below;  the  more  so  as,  for 
the  opinion  thus  expressed,  I  not  only  fail  to  discover  any  authority 
whatever,  but  find  all  jurists  who  treat  of  this  form  of  bailment 
carefully  distinguishing  between  the  common  carrier  and  the  private 
ship;  and  Parsons,  a  writer  of  considerable  authorit}'  on  this  sub- 
ject, defines  a  common  carrier  to  be  "  one  who  offers  to  carry  goods 
for  any  person  between  certain  termini  and  on  a  certain  route." 
"  He  is  bound  to  carry  for  all  who  tender  to  him  goods  and  the 
price  of  carriage,  and  insures  these  goods  against  all  loss  but  that 
arising  from  the  act  of  God  or  the  public  enemy,  and  has  a  lien  on 
the  goods  for  the  price  of  the  carriage."  "If  either  of  these  ele- 
ments is  wanting,  we  say  the  carrier  is  not  a  common  carrier  either 
by  land  or  by  water."  "If  we  are  right  in  this,"  lie  adds,  "no 
vessel  will  be  a  common  carrier  that  does  not  ply  regularly,  alone, 
or  in  connection  with  others,  on  some  definite  route,  or  between  two 
Certain  termini."     (Parsons,  Shipping,  p.  245.) 

Story  seems  to  be  of  a  like  opinion.  "When  it  is.  said,"  he 
observes,  "  that  the  owners  and  masters  of  ships  are  deemed  com- 
mon carriers,  it  is  to  be  understood  of  such  ships  as  are  employed 
as  general  ships,  or  for  the  transportation  of  merchandise  for  per- 
sons in  general,  —  such  as  vessels  employed  in  the  coasting  trade,  or 
foreign   trade,  or  on  general  freighting  business,  for  all    persons 


22:2  ACCIDENT. 


No.  4.  —  Nugent  v.  Smith. 


offering  goods  on  freight  for  the  port  of  destination."  "  But  if  the 
owner  of  a  ship  employs  it  on  his  account  generally,  or  if  he  lets 
the  tonnage,  with  a  small  exception,  to  a  single  person,  and  then, 
for  the  accommodation  of  a  particular  individual,  he  takes  goods 
on  hoard  for  freight,  not  receiving  them  for  persons  in  general,  he 
will  not  he  deemed  a  common  carrier,  hut  a  mere  private  carrier." 
(Story  on  Bailments,  §  501.) 

So  Angell,  speaking  of  shipowners  as  common  carriers,  says* 
"When  it  is  said  that  the  owners  and  masters  of  ships  are  treated 
as  common  carriers,  it  is  to  be  understood  of  such  ships  as  are 
employed  for  the  transportation  of  merchandise  for  all  persons 
indifferently.  Should  the  owner  of  a  ship  employ  it  on  his; 
account,  and,  for  the  special  accommodation  of  a  particular  indi- 
vidual, take  goods  on  board  for  freight,  not  receiving  them  for 
all  persons  indifferently,  he  does  not  come  within  the  definition 
of  a  common  carrier,  he  not  holding  himself  out  as  engaged  in 
a  public  employment."  (Angell  on  Carriers,  §  89.)  But  the 
learned  author  does  not  say  what  would  be  the  case  where  a 
shipowner  holds  himself  out  as  ready  to  send  his  vessel  with 
cargo  to  any  place  that  may  be  agreed  on,  on  a  private  bargain, 
and  not  as  a  general  ship. 

In  the  absence  of  all  common  law  authority  for  the  proposition 
that  by  the  law  of  England  every  carrier  by  sea  is  subject  to  the 
same  liability  as  the  common  carrier,  as  asserted  in  the  judgment 
below,  the  authority  of  the  Roman  law  is  invoked  ;  but  this  lawr 
on  which  so  much  stress  is  laid  in  the  judgment  of  the  Court  of 
Common  Pleas,  affords  no  support  to  this  doctrine.  In  the  first 
place,  it  is  a  misapprehension  to  suppose  that  the  law  of  Englandr 
relating  to  the  liability  of  common  carriers,  was  derived  from  the 
Roman  law;  for  the  law  relating  to  it  was  first  established  by 
our  Courts  with  reference  to  carriers  by  land,  on  whom  the  Roman 
law,  as  is  well  known,  imposed  no  liability  in  respect  of  loss  beyond 
that  of  other  bailees  for  reward.  In  the  second  place,  the  Roman 
law  made  no  distinction  between  inevitable  accident  arising  from 
what  in  our  law  is  termed  "  act  of  God  "  and  inevitable  accident 
arising  from  other  causes,  but,  on  the  contrary,  afforded  immunity 
to  the  carrier,  without  distinction,  wherever  the  loss  resulted  front 
casus  fortuities,  or,  as  it  is  also  called,  damnum  fa  talc,  or  vis  major,  — 
unforeseen  and  unavoidable  accident.  The  language  of  the  Praeto- 
rian Edict,  as  given  in  the  Digest,  might,  indeed,  if  it  stood  alone^ 


ACCIDENT. 


No.  4.  —  Nugent  v.   Smith. 


lead  to  the  supposition  that  the  liability  of  the  carrier  by  sea  was 
unlimited.  "Ait  praetor,  nauhe,  caupones,  stabularii  quod  cujusque 
salvum  fore  receperint,  nisi  restituant,  in  eos  judicium  dabo." 
(Dig.  IV.  Tit.  9.)  But  Ulpian,  who  gives  the  words  quoted  in  his 
treatise  on  the  Edict,  explains  their  meaning:  "Hoc  edicto  <  mi  - 
nimodo  qui  recepit  tenetur,  etiam  si  sine  culpa  ejus  res  periit  vel 
damnum  datum  est,  nisi  si  quid  damno  fatali  contingit.  hide 
Labeo  scribit,  si  quid  naufragio  aut  per  vim  piratarurn  perierit, 
non  esse  iniquum  exceptionem  ei  dari.  Idem  erit  dicendum  si 
in  stabulo  aut  in  caupona  vis  major  contigerit."  In  the  one  case 
the  absence  of  culpa  makes  no  dift'erence ;  in  the  other,  it  dues. 
No  difference  of  opinion  exists  amongst  civilians  as  to  the  law 
on  this  subject.  There  is  no  doubt  that  inevitable  accident  — 
damnum  fatale,  casus  fortuities,  vis  major  (for  these  are  synony- 
mous terms)  —  exempts  the  carrier  from  liability.  "  Casus  fortuitus," 
says  Averani,  "appellatur  vis  major,  vis  divina,  fatum,  damnum 
fatale,  fatalitas." 

Such  is  the  Roman  law,  and  such  is  the  existing  law  of  all  the 
nations  which  have  adopted  the  Roman  law,  —  France,  Spain,  Italy, 
Germany,  Holland,  and,  to  come  nearer  home,  Scotland.  It  is  em- 
bodied in  the  Code  Civil  of  France.  Treating  of  carriers  by  land 
and  water,  the  Code  says  (Art.  1754),  "  lis  sont  responsables  de  la 
perte  et  des  avaries  des  choses  qui  leur  sont  confides,  a  moins  qu'ils 
ne  prouvent  qu'elles  out  4t6  perdues  et  avarices  par  cas  fortuit  ou 
force  majeure." 

That  such  is  the  law  of  Scotland,  we  learn  from  what  is  said  in 
Erskine's  Institutes,  pp.  591,  592  n.,  from  which  it  appears  that  by 
that  law,  not  only  storm  and  pirates,  but  also  housebreaking  and 
fire  constitute  damnum  fatale,  which  will  exonerate  the  innkeeper 
or  carrier.  (See  also  the  Appendix  to  Stair's  Institutes,  by  More. 
p.  57.) 

But  not  only  does  this  essential  difference  between  the  Roman 
law  and  our  own  suffice  to  show  that,  so  far  as  the  liability  of  car- 
riers is  concerned,  our  law  has  not  been  derived  from  the  Roman. 
As  matter  of  legal  history,  we  know  that  the  more  rigorous  law  of 
later  times,  first  introduced  during  the  reign  of  Elizabeth,  was,  in 
the  first  instance,  established  with  reference  to  carriers  by  land,  to 
whom,  by  the  Roman  law,  no  such  liability  attached.  It  was  not 
till  the  ensuing  reign,  in  the.  11th  of  James  I.,  that  it  was  decided 
in  Rich  v.  Kneeland,  3   Cro.  Jac.  330 ;  Hob.   17,  that  a   common 


224  ACCIDENT. 


No.  4.  —  Nugent  v.  Smith. 


hoyman  or  carrier  by  water  stood  on  the  same  footing  as  a  common 
carrier  by  land,  and  rightly  :  for  in  principle  there  could  be  no  dif- 
ference between  them.  The  next  case  in  point  of  date,  and  it  is 
the  first  case  in  the  books  in  which  the  liability  of  the  owners  of 
a  sea-going  ship  comes  in  question,  is  the  well-known  case  of 
Morse  v.  Slue,  1  Ventr.  190,  238,  which  is  no  authority  for  the 
position  that  the  liability  of  a  common  carrier  attaches  to  the  ship- 
owner or  master  where  the  ship  is  not  a  general  ship.  It  is  men- 
tioned in  the  report  in  Ventris  that  the  ship  was  a  vessel  of  150 
tons  burden,  bound  for  Cadiz,  and  that  the  goods  shipped  by  the 
plaintiff  consisted  of  three  trunks,  containing  400  pairs  of  silk 
stockings  and  174  lbs.  of  silk.  It  seems  idle  to  suppose  that  a 
ship  of  that  size  would  have  been  hired  on  such  a  voyage  for  the 
purpose  of  carrying  the  plaintiffs  three  trunks  as  her  entire  cargo. 
There  seems,  therefore,  no  reasonable  doubt  that  the  ship  was  a 
general  ship. 

After  commenting  on  the  cases  of  Dale  v.  Hall,  1  Wils.  281  ; 
Barclay  v.  Cuculla-y-Gana,  3  Dougl.  389  ;  Lyon  v.  Mells,  5  East,  42S  ; 
and  The  Liver  Alkali  Company  v.  Johnson,  L.  If.,  9  Exch.  338  ;  43 
L.  J.  R.  Exch.  216,  the  Lord  Chief  Justice  observed  that  as  the 
decision  of  the  Court  of  Exchequer  Chamber  in  the  last-mentioned 
case  proceeded  on  the  ground  that  the  defendant  in  that  case  was 
a  common  carrier,  the  decision  is  no  authority  for  the  position 
taken  in  the  Court  below,  that  all  shipowners  are  equally  liable  for 
loss  by  inevitable  accident.  I  cannot,  therefore  [he  said],  concur  in 
the  opinion  expressed  in  the  judgment  delivered  by  Mr.  Justice 
Brett,  that  by  the  law  of  England  all  carriers  by  sea  are  subject 
to  the  liability  which  by  that  law  undoubtedly  attaches  to  the 
common  carrier,  whether  by  sea  or  by  land. 

But  there  being  no  doubt  that  in  the  case  before  us  the  ship- 
owner was  a  common  carrier,  we  have  now  to  deal  with  the  ques- 
tion on  which  the  decision  really  turns,  —  namely,  whether  the  loss 
was  occasioned  by  what  can  properly  be  called  the  "act  of  God." 

The  definition  which  is  given  by  Mr.  Justice  Buett  of  what  is 
termed  in  our  law  "the  act  of  God,"  is  that  it  must  be  such  a 
direct  and  violent  and  sudden  and  irresistible  act  of  nature  as 
could  not  by  any  amount  of  ability  have  been  foreseen,  or,  if  fore- 
seen, could  not  by  any  amount  of  human  care  and  skill  have  been 
resisted.  The  judgment  then  proceeds:  "We  cannot  say,  not- 
withstanding  the  inability  of  the  jury  to  agree  to  an  answer  to 


ACCIDENT.  225 


No.  4. — Nusrent  v.   Smith 


the  fifth  question  left  to  them,  that  the  defendant  has  in  this 
case  satisfied  the  burden  of  proof  cast  upon  him,  so  as  to  bring 
himself  clearly  within  the  definition.  It  seems  to  me  impossible 
to  say  that  no  human  ability  could  foresee  the  reasonable  proba- 
bility of  the  happening  of  rough  weather  on  the  voyage,  and  that 
a  horse  at  sea  might  be  frightened  by  it,  or  that  no  human  ability 
could  prevent  injury  to  a  frightened  horse  in  such  weather  as 
occurred." 

The  exposition  here  given  appears  to  me  far  too  wide  as  regards 
the  degree  of  care  required  of  the  shipowner,  and  as  exacting  more 
than  can  properly  be  expected  of  him. 

It  is  somewhat  remarkable  that  previously  to  the  present  case 
no  judicial  exposition  has  occurred  of  the  meaning  of  the  term 
"act  of  God,"  as  regards  the  degree  of  care  to  be  applied  by  the 
cariicr,  in  order  to  entitle  himself  to  the  benefit  of  its  protection. 
We  must  endeavour  to  lay  down  an  intelligible  rule. 

That  a  storm  at  sea  is  included  in  the  term  "act  of  God"  can 
admit  of  no  doubt  whatever.  Storm  and  tempest  have  always 
been  mentioned,  in  dealing  with  this  subject,  as  among  the  in- 
stances of  vis  major,  coming  under  the  denomination  of  ''act  of 
God."  But  it  is  equally  true,  as  has  been  already  pointed  out, 
that  it  is  not  under  all  circumstances  that  inevitable  accident  aris- 
ing from  the  so-called  "act  of  God,"  will,  any  more  than  inevitable 
accident  in  general  by  the  Roman  and  Continental  law,  afford 
immunity  to  the  carrier.  This  must  depend  on  his  ability  to 
avert  the  effects  of  the  vis  major,  and  the  degree  of  diligence 
which  he  is  bound  to  apply  to  that  end. 

It  is  at  once  obvious,  as  was  pointed  out  by  Lord  Mansfield  in 
Forward  v.  Pittarcl,  supra,  that  all  causes  of  inevitable  accident, 
casus  fortuitus,  may  be  divided  into  two  classes,  —  those  which  are 
occasioned  by  the  elementary  forces  of  nature,  unconnected  with 
the  agency  of  man,  or  other  cause,  and  those  which  have  their 
origin  either  in  the  whole  or  in  part  in  the  agency  of  man,  whether 
in  acts  of  com  mission  or  omission,  of  nonfeasance  or  of  misfeas- 
ance, or  in  any  other  cause  independent  of  the  agency  of  natural 
forces. 

It  is  obvious  that  it  would  be  altogether  incongruous  to  apply 
the  term  "act  of  God"  to  the  latter  class  of  inevitable  accident. 
It  is  equally  clear  that  storm  and  tempest  belong  to  the  class  to 
which  the  term  "act  of  God"  is  properly  applicable. 
vol.  i.  — 15 


226  ACCIDENT. 


No.  4.  —  Nugent  v.  Smith. 


On  the  other  hand,  it  must  be  admitted  that  it  is  not  because  an 
accident  is  occasioned  by  the  agency  of  nature,  and  therefore  by 
what  may  be  termed  the  "act  of  God,"  that  it  necessarily  follows 
that  the  carrier  is  entitled  to  immunity.  The  rain  which  fertilises 
the  earth,  and  the  wind  which  enables  the  ship  to  navigate  the 
ocean,  are  as  much  within  the  term  "  act  of  God  "  as  the  rainfall 
which  causes  a  river  to  burst  its  banks  and  carry  destruction  over 
a  whole  district,  or  the  cyclone  that  drives  a  ship  against  a  rock 
or  sends  it  to  the  bottom.  Yet  the  carrier,  who  by  the  rule  is 
entitled  to  protection  in  the  latter  case,  would  clearly  not  be  able 
to  claim  it  in  case  of  damage  occurring  in  the  former,  for  he  it 
another  principle  comes  into  play.  The  carrier  is  bound  to  do 
his  utmost  to  protect  goods  committed  to  his  charge  from  loss  or 
damage,  and  if  he  fails  herein,  becomes  liable  from  the  nature  of 
his  contract.  In  the  one  case  he  can  protect  the  goods  by  proper 
care;  in  the  other,  it  is  beyond  his  power  to  do  so.  If,  by  his  de- 
fault in  omitting  to  take  the  necessary  care,  loss  or  damage  ensues, 
he  remains  responsible,  though  the  so-called  "act  of  God"  may 
have  been  the  immediate  cause  of  the  mischief.  If  the  ship  is 
unseaworthy,  and  hence  perishes  from  the  storm  which  it  other- 
wise would  have  weathered  ;  if  the  carrier,  by  undue  deviation  or 
delay,  exposes  himself  to  the  danger  which  he  otherwise  would 
have  avoided;  or  if  by  his  rashness  he  unnecessarily  encounters 
it,  as  by  putting  to  sea  in  a  raging  storm,  —  the  loss  cannot  be  said 
to  be  due  to  the  "act  of  God "'  alone,  and  the  carrier  cannot  have 
the  benefit  of  the  exception.  This  being  granted,  the  question 
arises  as  to  the  degree  of  care  which  is  to  be  required  of  him  to 
protect  him  from  liability  in  respect  of  loss  arising  from  the  "act 
of  God."  Not  only,  as  has  been  observed,  has  there  been  no  judi- 
cial exposition  of  the  meaning  of  the  term  "act  of  God,"  as  regards 
the  degree  of  care  to  be  applied  by  the  carrier  in  order  to  entitle 
himself  to  its  protection,  but  the  text  writers,  both  English  and 
American,  are  for  the  most  part  silent  on  the  subject,  and  afford 
little  or  no  assistance. 

Being  here,  however,  on  common  ground  with  the  civilians,  so 
far  as  one  head  of  inevitable  accident  is  concerned,  it  may  be  of 
use,  while  endeavouring  more  clearly  to  fix  the  limits  of  that  class 
of  inevitable  accidents  which  come  under  the  head  of  "act  of  God," 
to  turn  to  their  views  on  the  subject  with  reference  to  inevitable 
accidents  in  general. 


ACCIDENT.  227 

No.  4.  —  Nugent  v.  Smith. 


As  the  result  of  the  different  instances  of  casus  fortuities  which 
occur  in  the  Digest,  Vinnius  gives  the  following  definition: 
"Casum  fortuitum  definimus  onme  quod  huniano  cceptu  praevideri 
non  potest  nee  cui  proviso  potest  resisti  "  (Partit.  Juris,  Lib.  II. 
c.  66).  He  enumerates  various  instances,  "Casus  fortuiti  varii 
sunt:  veluti  a  vi  ventorum,  turbinuin,  pluviarum,  grandinum,  ful- 
niinuni,  aestus,  frigoris,  et  similium  calamitatum  quae  ccelitus  im- 
mittuntur.  Nostri  vim  divinam  dixerunt.  Graeci,  Oeov  (3iav. 
Item  naufragia,  aquarum  inundationes,  incendia,  mortes  anima- 
lium,  ruina'  aedium,  fundorum  chasmata,  incursus  hostium,  praedo- 
nuin  impetus.  His  adde  daniua  omnia  a  privatis  illata,  quae 
quominus  inferrentur  nulla  eura  eaveri  potest."  Baldus  (Quaest. 
12,  No.  4)  gives  the  following  definition:  "Casus  fortuitus  est 
accidens,  quod  per  custodian),  curam,  vel  diligentiam  mentis 
human aa   non   potest  evitari  ah   eo  qui  patitur." 

In  our  own  law  on  this  subject,  judicial  authority,  as  has  been 
stated,  is  wanting,  and  the  text  writers,  English  and  American, 
with  one  exception,  afford  little  or  no  assistance.  Story,  however, 
in  speaking  of  the  perils  of  the  sea,  in  which  storm  and  tempest 
are  of  course  included,  and  consequently  to  a  great  extent  the 
instances  of  inevitable  accident  at  sea  which  come  under  the 
term  "  act  of  God,"  uses  the  following  language  :  "  The  phrase 
'perils  of  the  sea,' whether  understood  in  its  most  limited  sense, 
as  importing  a  loss  by  natural  accident  peculiar  to  that  ele- 
ment, or  whether  understood  in  its  more  extended  sense,  as 
including  inevitable  accidents  occurring  upon  that  element,  must 
still  in  either  -case  be  understood  to  include  such  losses  only  to 
the  goods  on  board  as  are  of  an  extraordinary  nature,  or  arise 
from  some  irresistible  force,  or  from  inevitable  accident,  or  from 
some  overwhelming  power,  which  cannot  be  guarded  against  by 
ordinary  exertions  of  human  skill  and  prudence.  Hence  it  is 
that  if  the  loss  occurs  by  a  peril  of  the  sea  which  might  have 
been  avoided  by  the  exercise  of  any  reasonable  skill  or  dili- 
gence, at  the  time  when  it  occurred,  it  is  not  deemed  to  be,  in 
the  sense  of  the  phrase,  such  a  loss  by  the  perils  of  the  sea  as 
will  -exempt  the  carrier  from  liability,  but  rather  a  loss  by  the 
gross  negligence  of  the  party."  (Story  on  Bailments,  512  a.) 
Story,  it  will  be  observed,  here  speaks  only  of  "  ordinary  exertion 
of  human  skill  and  prudence,"  and  "the  exercise  of  reasonable  skill 
and  diligence." 


228  ACCIDENT. 

No.  4.  —  Nugent  v.  Smith. 


In  my  opinion  this  is  the  true  view  of  the  matter,  and  what 
Story  here  says  of  perils  of  the  sea  applies,  I  think,  equally  to  the 
perils  of  the  sea  coming  within  the  designation  of  "  acts  of  God." 
In  other  words,  that  all  that  can  be  required  of  the  carrier  is,  that 
he  shall  do  all  that  is  reasonably  and  practically  possible  to  ensure 
the  safety  of  the  goods.  If  he  uses  all  the  known  means  to  which 
prudent  and  experienced  travellers  ordinarily  have  recourse,  he 
does  all  that  can  be  reasonably  required  of  him,  and  if,  under  such 
circumstances,  he  is  overpowered  by  storms  or  other  natural 
agency,  he  is  within  the  rule  which  gives  immunity  from  the 
effects  of  such  vis  major  as  the  "  act  of  God."  I  do  not  think  that 
because  some  one  may  have  discovered  some  more  efficient  method 
of  securing  the  goods,  which  has  not  become  generally  known,  or 
because  it  cannot  be  proved  that  if  the  skill  and  ingenuity  of 
engineers  or  others  were  directed  to  the  subject,  something  more 
efficient  might  not  be  produced,  that  the  carrier  can  be  made  liable. 
I  find  no  authority  for  saying  that  the  vis  major  must  be  such  as  "  no 
amount  of  human  care  or  skill  could  have  resisted,"  or  the  injury 
such  as  "no  human  ability  could  have  prevented,"  and  I  think  this 
construction  of  the  rule  erroneous. 

That  the  defendants  here  took  all  the  care  that  could  reasonably 
be  required  of  them  to  ensure  the  safety  of  the  mare,  is,  I  think, 
involved  in  the  finding  of  the  jury,  directly  negativing  negligence; 
and  I  think  that  it  was  not  incumbent  on  the  defendants  to 
establish  more  than  is  implied  by  that  finding. 

The  matter  becomes,  however,  somewhat  complicated  from  the 
fact  that  the  jury  have  found  that  the  death  of  the  mare  is  to  be 
ascribed  to  injuries  caused  partly  by  the  rolling  of  the  vessel, 
partly  by  struggles  of  the  animal  occasioned  by  fright,  leaving  it 
doubtful  whether  the  fright  was  the  natural  effect  of  the  storm,  or 
whether  it  arose  from  an  unusual  degree  of  timidity  peculiar  to  the 
animal,  and  in  excess  of  what  would  generally  be  displayed  by 
horses.  But  the  plaintiff  is  in  this  dilemma,  — if  the  fright  which 
led  to  the  struggling  of  the  mare  was  in  excess  of  what  is  usual  in 
horses  on  shipboard  in  a  storm,  then  the  rule  applies  that  the 
carrier  is  not  liable  where  the  thing  carried  perishes,  or  sustains 
damage,  without  any  fault  of  his,  by  reason  of  some  quality  in- 
herent in  its  nature,  and  which  it  was  not  possible  for  him  to 
guard  against.  If,  on  the  other  hand,  the  fright  was  the  natural 
effect  of  the  storm  and  the  agitation  of  the  ship,  then  it  was  the 


ACCIDENT.  229 


No.  4.  —  Nugent  v.  Smith. 


immediate  consequence  of  the  storm  ;  and  the  injuries  occasioned 
by  the  fright  are  sufficiently  closely  connected  with  the  storm  — 
in  other  words,  with  the  act  of  God  —  to  afford  protection  to  the 
cariier.  If  the  disaster  is  the  result  of  a  combination  of  causes, 
for  neither  of  which  the  carrier  was  responsible,  he  cannot  be 
made  liable  any  more  than  if  it  had  resulted  from  either  of  them 
alone. 

For  these  reasons  I  am  of  opinion  that  the  judgment  of  the 
Court  below  must  be  reversed,  and  judgment  entered  for  the 
defendant. 

James,  L.  J.  I  am  of  the  same  opinion.  To  say  that  a  com- 
mon carrier  is  nut  liabb  for  the  act  of  God  is  merely  a  short 
way  of  expressing  this  proposition :  A  common  carrier  is  not 
liable  for  any  accident  as  to  which  he  can  show  that  it  was 
due  to  natural  causes,  directly  and  exclusively,  without  human 
intervention,  and  that  it  could  not  have  been  prevented  by  any 
amount  of  foresight,  pains,  and  care  reasonably  to  be  expected 
from  him.  In  this  case  the  defendant  has,  in  my  opinion,  made 
this  out. 

Hellish,  L.  J.  I  do  not  wish  to  give  any  opinion  on  the 
question  whether  the  defendants,  if  they  had  not  been  common 
carriers,  would  have  been  subject  to  the  liability  of  common  carri- 
ers. It  is  unnecessary  to  give  any  opinion  on  that  question, 
because  it  was  admitted  in  the  argument  before  us  that  the  defen- 
dants were  common  carriers.  I  agree  with  the  Lord  Chief  Justice 
that  the  judgment  of  the  Common  Pleas  Division  ought  to  be 
reversed,  and  generally  with  the  reasons  he  has  given  in  his  judg- 
ment. If  the  jury  had  found  that  the  injury  to  the  mare  was 
caused  solely  by  more  than  ordinary  bad  weather,  without  any 
negligence  of  the  defendants'  servants,  or  any  fright  and  conse- 
quent struggling  of  the  mare,  I  am  of  opinion  that  a  plea  that  the 
injury  to  the  mare  was  caused  by  the  act  of  God  would  have  been 
proved.  It  is  obvious  that,  if  a  horse  is  properly  secured  on  deck, 
and  properly  attended  to  by  the  carriers  servants,  and  is  quiet, 
and  nevertheless  is  so  injured  as  to  be  killed  by  the  pitching  of 
the  vessel,  the  violence  of  the  storm  must  be  very  great  indeed, 
and  the  whole  accident  would  be  of  such  an  extraordinary  char- 
acter as  plainly  to  amount  to  the  act  of  God  within  the  authorities. 
So,  also,  if  the  jury  had  found  that  the  injury  was  caused  solely  by 
the  conduct  of  the  mare  herself,  by  reason  of  fright,  and  consequent 


23  D  ACCIDENT. 


No.  4.  —  Nugent  v.  Smith. 


struggling,  without  any  negligence  on  the  part  of  the  defendant's 
servants,  I  am  of  opinion  that  a  plea  that  the  injury  to  the  mare 
was  caused  by  the  vice  of  the  mare  herself  would  have  been 
proved. 

The  cases  of  Kendall  v.  The  London  and  Soldi)  Western  Railway 
Company, h.  R.,  7  Excli.  373;  41  L.  J.  E.  Exch.  184,  and  The  Ureal 
Western  Railway  Company  v.  Blower,  L.  lb,  7  C.  1*.  655;  41  L.  J.  It. 
C.  1'.  268,  arc  direct  authorities  to  this  effect.  Now,  if  these  con- 
clusions are  correct,  it  seems  to  me  it  would  be  absurd  to  hold 
that,  although  the  injury  to  the  mare  was  occasioned  by  tin- 
causes  combined,  for  neither  of  which  the  carrier  was  responsible, 
nevertheless,  he  was  liable. 

It  may  be  true  that,  as  the  injury  to  the  mare  was  not  solely 
occasioned  by  more  than  ordinary  bad  weather,  the  bad  weather 
may  not  have  been  so  bad  as  to  deserve  the  description  of  a  direct 
and  violent  and  sudden  and  irresistible  act  of  nature,  which,  in 
the  Court  below,  it  was  said  it  must  amount  to,  in  order  to  amount 
to  an  act  of  God. 

The  bad  weather  may  not  have  been  irresistible,  because,  if  it 
had  not  been  for  the  conduct  of  the  mare  herself,  it  might  have 
been  resisted.  So,  also,  the  conduct  of  the  mare  herself  may  not 
have  been  the  sole  and  irresistible  cause  of  the  injury,  because,  if 
it  had  not  been  for  the  bad  weather,  any  injurious  effect  from  the 
fright  and  struggling  of  the  mare  might,  by  reasonable  precaution, 
have  been  prevented. 

Still,  it  may  be  perfectly  true,  and  I  think  the  jury  must  be 
taken  to  have  found  it  was  true,  that  the  more  than  ordinary  bad 
weather,  and  the  fright  and  struggling  of  the  mare  herself,  did 
together  form  a  direct  and  violent  and  irresistible  cause  of  the 
damage  done  which  the  mare  suffered.  In  the  Court  below  the 
learned  Judges  first  consider  this  question,  Whether  the  loss  in 
this  case  can  be  considered  to  have  occurred  by  the  act  of  God  ? 
And  because  the  bad  weather  did  not,  in  their  opinion,  amount  to 
a  direct  and  violent  and  sudden  and  irresistible  act  of  nature, 
they  come  to  the  conclusion  that  the  loss  was  not  occasioned  by 
the  act  of  God.  They  then  consider  whether  the  loss  was  occa- 
sioned by  the  vice  of  the  mare  herself;  and  because  they  think 
that  the  fright  and  struggling  of  the  mare  was  occasioned  princi- 
pally by  the  bad  weather,  they  hold  that  the  loss  was  not  occa- 
sioned by  the  vice  of  the  mare  herself. 


ACCIDENT.  231 

No.  4.  —  Nugent  v.  Smith. 


The  objection  to  this  mode  of  considering  the  case  seems  to  me 
to  be,  that  the  two  causes  of  loss  are  considered  separately,  and 
because  neither,  taken  separately,  affords  an  answer  to  the  plain- 
tiff's claim,  it  is  assumed  that  both,  taken  together,  cannot  afford 
an  answer.  Now,  I  am  of  opinion  we  ought  to  hold  that,  notwith- 
standing neither  the  more  than  ordinary  bad  weather  nor  the  fright 
and  struggling  of  the  mare  herself,  each,  taken  separately,  were  suffi- 
cient to  account  for  the  loss,  yet  if  both  taken  together  formed  an 
irresistible  cause  of  the  loss  in  this  sense,  that  by  no  reasonable 
precaution  on  the  part  of  the  carrier  could  the  damage  resulting 
from  them  have  been  prevented,  the  carrier  is  protected.  It  being 
a  clear  rule  of  law  that,  if  the  loss  of  the  goods  carried  is  occasioned 
by  an  irresistible  act  of  nature,  the  carrier  is  protected ;  and 
another  clear  rule  of  law,  that,  if  the  loss  of  the  goods  is  solely 
occasioned  by  a  defect  in  the  thing  itself,  the  carrier  is  also  pro- 
tected, it  seems  to  me  to  follow  that,  if  a  loss  is  occasioned  partly 
by  an  act  of  nature,  although  one  not  of  itself  irresistible,  and 
partly  by  a  defect  in  the  thing  itself,  although  that  defect  is  not 
the  sole  cause  of  the  loss,  and  the  carrier  has  no  means  of  prevent- 
ing the  combined  effect  of  the  two  causes,  he  ought  to  be  held  to 
be  protected. 

The  principle  seems  to  me  to  be  that  a  carrier  does  not  ensure 
against  acts  of  nature,  and  does  not  ensure  against  defects  in  the 
thing  carried  itself ;  but  in  order  to  make  out  a  defence,  the  carrier 
must  be  able  to  prove  that  either  cause,  taken  separately,  or  both 
taken  together,  formed  the  sole  and  direct  and  irresistible  cause  of 
the  loss.  I  think,  however,  that,  in  order  to  prove  that  the  cause 
of  the  loss  was  irresistible,  it  is  not  necessary  to  prove  that  it  was 
absolutely  impossible  for  the  carrier  to  prevent  it,  but  that  it  is 
sufficient  to  prove  that,  by  no  reasonable  precaution,  under  the 
circumstances,  could  it  have  been  prevented. 

For  these  reasons  I  am  of  opinion  that  the  judgment  of  the  Court 
below  ought  to  be  reversed,  and  the  rule  to  enter  a  verdict  for  the 
plaintiff  discharged. 

Mellok,  J.,  and  Cleasby,  B.  concurred. 

The  judgment  of  the  Common  Pleas  ivas  accordingly  reversed. 


232  ACCIDENT. 


Nos.  3,  4.  —  Forward  v.  Pittard,  &,c.  —  Notes. 


ENGLISH   NOTES. 

The  principle  of  the  liability  of  common  carriers  was  finally  settled, 
for  the  purposes  of  English  law,  by  the  judgment  of  Lord  Mansfield 
in  Forward  v.  Pittard,  nor  has  it  since  been  called  in  question.  The 
case  of  Nugent  v.  Smith  contains  a  well  reasoned  and  authoritative  defini- 
tion of  the  extreme  boundary  of  the  liability.  Upon  the  principle  and 
its  limit  there  appears  nothing  to  add. 

The  numerous  cases  referred  to  in  the  arguments  and  judgments  in 
Nugent  v.  Smith  are  cited  chiefly  as  showing  that  shipowners  (speaking 
generally)  are  liable  as  common  carriers.  It  is  not  necessary  or  appro- 
priate to  the  main  topic  now  under  consideration  to  enter  further  into 
the  question  of  what  persons  are  liable  as  common  carriers.  Only  it 
may  be  here  observed  that  when  the  carrier  has  brought  the  goods  to, 
and  deposited  them  in,  the  place  where  by  usage  or  by  a  term  of  the 
contract  otherwise  expressed  or  implied,  they  are  to  remain  for  some  in- 
definite time,  there  is  an  end  of  his  peculiar  liability  as  a  carrier;  and 
if  the  place  of  deposit  is  on  premises  of  his  own,  he  is  liable  merely  as  a 
warehouseman,  and  by  reason  only  of  negligence  or  want  of  due  care  in 
that  capacity.  Garside  v.  Trent,  &c.  Navigation  (K.  B.  1792),  4  T.  R. 
581;  2  R.  R.  468;  Rome  v.  Pickford  (Ex.  1817),  8  Taunt.  83;  In  re 
Webb  (Ex.  1818),  8  Taunt.  443.  But,  if  his  contract  is  to  deliver  at  the 
address  of  the  consignee,  —  which  is  to  be  inferred  if  he  charges  for  cart- 
age,—  he  is  liable  as  carrier  until  the  actual  delivery.  Hydex.  Trent, 
&c.  Navigation  (K.  B.  1793),  5  T.  R.  389;  2  R.  R.  620.  And,  if  he  is 
not  to  deliver  at  the  actual  address  of  the  consignee,  it  is  to  be  presumed, 
unless  the  contrary  is  shown  by  established  usage  or  otherwise,  that  be- 
fore the  carrier  can  thus  change  the  character  of  his  custody  the  consignee 
is  to  be  allowed  a  reasonable  time  to  call  for  or  take  away  the  goods;  and 
where  the  consignee  has  a  fixed  and  convenient  address  it  wrould  appear 
that  notice  of  the  arrival  ought  to  be  given  him.  Bourne  v.  Gatliffe 
(1841,  1844),  3  Man.  &  Gr.  643;  11  CI.  &  F.  45.  Where  the  consignee 
has  no  fixed  address,  the  fact  of  the  goods  having  been  addressed  to  a 
certain  station,  and  having  been  kept  there  by  the  railway  company  for 
two  days,  is  sufficient  to  raise  the  presumption  that  the  company  have 
changed  their  character  from  that  of  carriers  to  warehousemen.  Chap- 
man v.  G.  W.  By.  Co.  (1880),  5  Q.  B.  D.278,  280;  49  L.  J.  Q.  B.  420. 

The  case  of  Readhead  v.  Midland  Ry.  Co.  (1867,  1869)  L.  R,,  2  Q.  B. 
412;  4  Q.  B.  379;  36  L.  J.  Q.  B.  181;  38  L.  J.  Q.  B.  169,  mentioned 
on  p.  208,  supra),  shows  that  the  liability  of  common  carriers  is  not  to 
he  extended  to  railway  companies  as  carriers  of  passengers.  The  re- 
sponsibility of  carriers  of  passengers,  as  well  as  the  question  how  far 
the  liability  of  carriers  of  goods  may  be  restricted  by  special  contracts, 
need  not  be  further  discussed  here. 


ACCIDENT.  233 


Nos.  3,  4.  —  Forward  v.  Pittard,  &-c.  —  Notes. 


AMERICAN    NOTES. 

The  principal  case  is  unanimously  followed  by  an  innumerable  crowd  of 
cases  in  this  country.  The  cases  unanimously  recognize  the  "act  of  God" 
as  something  superhuman  and  distinguishable  from  the  act  or  participation 
of  man.  It  will  be  useful  to  refer  only  to  a  few  of  the  most  prominent.  The 
following  are  classed  as  "acts  of  God,"  or  inevitable  accident,  excusing  the 
carrier:  a  "snag"  in  the  usual  channel  of  a  river,  Sviyrl  v.  Niolon,  2  Bailey 
(So.  Carolina),  421  ;  23  Am.  Dec.  146  ;  a  rock  in  the  sea,  Williams  v.  Grant,  1 
Connecticut,  1ST  ;  7  Am.  Dec.  2-55  ;  a  sudden  failure  of  wind,  causing  running 
aground,  Colt  v.  McMechen,  6  Johnson  (New  York),  1(30;  5  Am.  Dec.  200;  a 
snow  storm,  Ballentine  v.  No.  Missouri  R  Co.,  40  Missouri,  491 ;  93  Am.  Dec. 
315;  a  furious  wind  which  blows  a  car  from  the  track,  Blythe  v.  Denuer,  fyc. 
( 'o  ,  15  Colorado,  353  ;  11  Lawyers'  Rep.  Annotated,  615,  and  notes ;  the  Johns- 
town flood  of  1889,  caused  by  the  breaking  of  a  dam,  Longv  Penn.  R.  Co.,  147 
Penn.  St.  34  >;  14  Lawyers'  Hep.  Annotated,  741 ;  a  flood  such  as  has  occurred 
but  twice  in  a  generation,  Pearce  v.  The  Thomas  Newton,  41  Federal  Reporter, 
1013 ;  Smilh,v.  Western  Ry  Co.,  91  Alabama,  455  ;  11  Lawyers'  Rep.  Annotated, 
(319 ;  the  freezing  of  canals  and  rivers,  Bowman  v.  Teall,  23  Wendell  (New 
York),  308;  Harris  v  Band,  4  New  Hampshire,  259;  Crosby  v.  Filch,  12  Con- 
necticut, 410;  delay  caused  by  discharged  strikers,  Pittsburgh,  fyc.  R.  Co.  v. 
Iluzen,  84  Illinois,  3(3;  25  Am.  Rep.  422;  Geismer  v.  Lake  Shore,  §'c.  R.  Co., 
102  New  York,  563  ;  55  Am.  Rep.  837. 

The  following  have  been  held  not  "  acts  of  God  "  or  inevitable  accident : 
all  catastrophes  in  which  human  agency  in  any  degree  unites;  see  cases  cited 
ante,  p.  208 ;  fire  other  than  by  lightning,  Gilmore  v.  Carman.  1  Smedes  &  Mar- 
shall (Mississippi),  279;  40  Am.  Dec.  96;  displacement  of  a  buoy  by  natural 
causes,  Reaves  v.  Waterman,  2  Speers  Law  (So.  Carolina),  197 ;  42  Am.  Dec. 
364  ;  collision  of  vessels  without  fault  of  either,  Plaisted  v.  Boston,  Sfc.  Co.,  27 
Maine,  132  ;  46  Am.  Dec.  587,  citing  Forward  v.  Pittard  and  Coggs  v.  Bernard  ; 
running  of  flatboat  on  sunken  log  in  river,  Steele  v.  McTyer's  Adm'r,  31  Ala- 
bama, 667  ;  70  Am.  Dec.  516;  driving  of  a  vessel  by  a  squall  on  the  mast  of 
a  sunken  vessel  projecting  out  of  water,  Merrill  v.  Earle,  2.9  New  York,  115; 
86  Am.  Dec.  292  ;  a  recently  formed  bar  in  a  river,  Friend  v.  Woods,  6  Grat- 
tan  (Virginia),  189;  52  Am.  Dec.  119,  citing  Forward  v.  Pittard :  Mr  Arthur  v. 
Sears,  21  Wendell  (New  York),  196;  a  reservoir,  filled  by  unusual  rains,  but 
broken  by  a  stranger,  Polack  v.  Pioche,  35  California,  416  ;  95  Am.  Dee.  11."), 
and  note,  118  ;  the  great  Chicago  fire  (caused  by  a  cow's  kicking  over  a  lamp 
in  a  shed).  Chicago,  frc.  Ry.  Co.  v.  Sawyer,  69  Illinois,  285  ;  18  Am.  Rep.  613, 
and  note,  618,  giving  C.J.  Cockburn's  opinion  in  Nugent  v.  Smith,  and  observ- 
ing, that  "as  we  believe,  the  meaning  of  the  term  has  never  been  before 
judicially  passed  upon  ;  "  attack  on  a  train  by  thieves  and  the  driving  of  them 
away  by  a  band  of  citizens,  and  the  destruction  by  the  latter  of  a  quantity  of 
whiskey  to  prevent  its  falling  into  the  hands  of  the  former,  Long  v.  Pennsyl' 
vania  R.  Co.  (Penn.).  147  Penn.  St.  343. 

As  to  the  amount  of  skill  and  diligence  which  a  carrier  is  bound  toexert  in 
order  to  avert  the  consequences  of  an  act  of  God,  the  substance  of  the  cases 


234  ACCIDENT. 


Nos.  3,  4.  —  Forward  v.  Pittard,  &.c.  —  Notes. 


is  well  expressed  in  Nashville,  Sfc.  R.  Co.  v.  David,  0  Heiskell  (Tennessee), 
261 ;  19  Am.  Rep-.  .">!>4,  the  case  of  an  unprecedented  flood,  in  which  it  was  held 
that  the  carrier  is  not  bound  to  use  all  the  diligence  which  human  sagacity 
could  suggest,  but  only  to  use  actively  and  energetically  such  means  as  would 
suggest  themselves  to  and  be  within  the  knowledge  and  capacity  of  well- 
informed  and  competent  business  men  in  such  positions,  and  such  diligence 
as  prudent,  skilful  men  engaged  in  that  kind  of  business  might  be  expected 
to  use.  In  regard  to  any  stricter  requirement,  the  court  said  :  "  It  might 
with  equal  propriety  be  required  that  the  road  should  use  all  reasonable 
efforts  to  provide  against  a  flood  such  as  the  Deluge  in  the  days  of  Noah." 
And  so  in  Long  v.  Perm.  R.  Co.,  supra,  the  Johnstown  Flood  case,  the  court 
said :  the  loss  "  happened  in  spite  of  the  utmost  care  exercised  by  agents  and 
employees  to  escape  the  dangers  it  knew  to  exist  or  had  reasonable  ground  to 
apprehend.  It  may  lie  possible  for  us,  looking  back  coolly  and  in  the  light  of 
history,  to  see  how  property  and  life  might  have  been  saved  if  men  on  the 
ground  had  realized  the  awful  magnitude  of  the  impending  calamity.  It  was 
not  realized.  The  inhabitants  of  the  populous  valley  sat  in  their  homes,  or 
went  about  their  business,  while  the  deluge  was  approaching.  So  swift  was 
its  approach  that  the  horseman,  running  to  warn  the  city,  was  overtaken  and 
swallowed  up,  and  the  flood  fell  unannounced,  and  swept  the  day  express  and 
the  city  of  Johnstown  before  it.  What  was  done  on  that  day  must  be  consid- 
ered in  the  light  of  what  was  then  known,  and  what  with  such  knowledge  it 
was  reasonable  to  apprehend."  "  Reasonable  prudence  and  diligence  "  is  the 
test.     Smith  v.   West.  Rg..  supra. 

If  the  ad  of  God  was  of  such  an  overwhelming  and  destructive  character 
as  by  its  own  force,  and  independently  of  the  particular  negligence  alleged  or 
shown,  to  produce  the  injury,  there  would  be  no  liability,  though  there  was 
some  negligence  on  the  part  of  the  carrier.  To  create  liability,  it  must  have 
required  the  combined  effect  of  the  act  of  God  and  the  concurring  negligence 
of  the  party  to  produce  the  injury.  Baltimore,  Sfc.  R.  Co.  v.  Sulphur  Springs, 
;Ve.  District,  90  Penn.  St.  05;  Collier  v.  Valentine,  11  Missouri,  299  ;  Denng  v. 
X.  V.  Cent.  R.  Co.,  13  Gray  (Massachusetts).  481.  So  held  also  in  Morrison  v. 
Davis,  20  Penn.  St.  171  ;  .17  Am.  Dec.  095,  where  a  canal-boat  was  delayed  by 
the  lameness  of  a  horse  and  caught  in  an  extraordinary  flood.  The  last  two 
cases  were  approved  in  Railroad  Co.  v.  Reeves,  10  Wallace  (U.  S.  Sup.  Ct.),  190, 
Mr.  Justice  Miller,  giving  the  opinion,  declaring  that  proof  of  vis  major  ex- 
cuses the  defendant  from  showing  that  he  was  guilty  of  no  negligence.  But 
the  doctrine  of  the  last  three  cases  was  explicitly  denied  in  Condict  v.  Grand 
Trunk  R.  Co.,  51  Xew  York,  505. 


ACCIDENT.  235 


No.  5.  —  Fletcher  v.  Rylands.  —  Bule. 


No.  5.  — FLETCHER   v.    RYLANDS. 
RYLANDS   v.   FLETCHER. 

(ex.  1866;  H.  l.  1868.) 

No.  6.  —  NICOLLS   v.   MARSLAND. 
(c.  a.  from  Ex.  1876.) 

RULE. 

The  person  who  for  his  own  purposes  brings  on  his 
land,  and  collects  and  keeps  there,  anything  likely  to 
do  mischief  if  it  escapes,  is  prima  facie  answerable,  if 
it  escapes,  for  all  the  damage  which  is  the  natural 
consequence. 

So  that  where  the  defendant  had  collected  water  on  his 
land  by  means  of  a  reservoir,  and  the  water  as  soon  as 
the  reservoir  was  half-filled  escaped  through  underground 
shafts  in  old  workings  which  were  unknown  to  the 
defendant,  and  flooded  and  damaged  the  plaintiff's  mine, 
the  defendant  was  held  liable  for  the  damage. 

Bat  the  storing  of  water  by  a  person  on  his  own  land  in 
a  reservoir  constructed  in  a  proper  manner  and  so  as  to  be 
in  fact  sufficient  when  full,  under  ordinary  circumstances, 
to  contain  the  water,  is  an  act  not  in  itself  unlawful  ;  and 
a  person  so  storing  it  is  not  answerable  for  damage  effected 
by  the  escape  of  the  water,  if  the  escape  is  caused  by  the 
act  of  God  or  the  Queen's  enemies,  without  any  fault  on 
the  part  of  the  defendants.  And  if  a  reservoir  so  con- 
structed gives  way  by  the  action  of  a  flood  so  great  that 
it  could  not  reasonably  have  been  anticipated  ;  the  defen- 
dants by  showing  this,  and  proving  that  all  reasonable 
care  wras  taken  in  the  construction  and  maintenance  of 
the  reservoir,  will  be  exonerated. 


236  ACCIDENT. 


No.  5.  —  Fletcher  v.  Rylands. 


Fletcher  v.  Rylands. 
Eylands  v.  Fletcher. 

L.  R.,  1  Ex.  265;  L.  E.,  3  H.  L.  330  (s.  c.  35  L.  J.  Ex.  154;  12  Jur.  n.  s.  603  ;  14 
L.  T.  523;  14  W.  R.  799;  4  H.  &  C.  263;  37  L.  J.  Ex.  161  ;  19  L.  T.  220). 

Error  from  the  judgment  of  the  Court  of  Exchequer  on  a 
special  case. 

Declaration.  First  count,  that  the  defendants  were  possessed 
of  land  in  the  township  of  Ainsworth,  except  the  mines  and  veins 
of  coal  under  the  surface  ;  and  that  the  plaintiff  was  possessed  of 
coal  mines  lying  near  the  defendants'  land  ;  and  that  by  reason 
thereof,  and  of  a  license  from  the  person  in  possession  of  certain 
underground  cavities  near  the  mines,  he  was  entitled  to  use  those 
cavities  for  the  purpose  of  working  the  mines,  and  getting  coals 
from  the  mines  and  carrying  them  through  the  cavities;  yet  the 
defendants  so  carelessly  and  negligently  constructed  on  the  said 
land  a  reservoir  to  contain  water,  and  kept  therein,  in  their  pos- 
session and  under  their  care,  large  quantities  of  water,  and  took  so 
little  and  such  bad  care  of  the  water  that  large  quantities  thereof, 
by  reason  of  the  premises,  escaped  from  the  reservoir  and  flowed 
towards  and  into  the  said  mines  and  cavities,  whereby  the  plaintiff 
was  prevented  for  a  long  time  from  working  the  mines,  and 
getting  coal  therefrom,  and  carrying  the  same  through  the 
cavities,  and  was  put  to  expense  in  pumping  out  the  water  and 
repairing  damage  done  by  it,  and  lost  gains  and  profits ;  and  that 
such  reasonable  fear  of  being  drowned  in  the  mines  and  cavities 
was  caused  in  the  minds  of  workmen  then  and  theretofore  em- 
ployed in  the  mines,  and  of  others,  that  the  working  of  the  mines 
was  rendered  permanently  more  expensive  and  more  difficult  than 
it  had  been  or  would  otherwise  have  continued  to  be. 

Second  count,  that  the  plaintiff  was  possessed  of  coal  mines,  and 
that  by  reason  thereof,  and  of  a  license,  &c.  (repeating  the  alle- 
gations as  to  the  cavities);  and  that  the  defendants  were  possessed 
of  large  quantities  of  water  then  by  the  defendants  kept  in  a 
reservoir  near  to  the  mines  and  cavities  ;  yet  the  defendants  took 
so  little  and  such  bad  care,  &c.  (repeating  the  allegations  as  to 
negligence  and  damage  to  the  end  of  the  first  count). 

Third  count,  that  the  plaintiff  was  possessed  of  mines  and  veins 
of  coal  in  and  under  certain  land,  and  the  defendants  were  pos- 


ACCIDENT.  237 


No.  5.  —  Fletcher  v.  Rylands. 


sessed  of  the  said  land  above  part  of  the  said  mines  and  veins ;  yet 
the  defendants  so  negligently,  carelessly,  and  improperly  made  and 
constructed  a  reservoir  on  the  said  land,  and  collected  and  dammed 
up  thereon  large  quantities  of  water  on  the  surface  ;  that  by  reason 
of  the  premises  large  quantities  of  the  said  water  flowed  and  forced 
their  way  through  and  out  of  the  reservoir,  towards,  to,  and  into 
the  mines  and  veins  of  coal  of  the  plaintiff,  whereby  the  mines 
and  veins  of  coal  were  much  damaged,  and  the  plaintiff'  was 
prevented,  &c.  (repeating  the  allegations  as  to  damage). 

Plea,  Not  guilty.     Issue  thereon. 

The  action  came  on  to  be  tried  at  the  Liverpool  summer  assizes, 
1862,  and  a  verdict  was  entered  for  the  plaintiff  for  £5000,  subject 
to  an  award  on  the  terms  mentioned  in  an  order  of  nisi  jprius, 
made  3d  of  September,  1862.  By  a  subsequent  order  of  Channell, 
B.,  made  31st  of  December,  1864,  the  arbitrator  was  empowered, 
instead  of  making  an  award,  to  state  a  special  case  for  the  opinion 
of  the  Court  of  Exchequer,  in  such  form  as  he  should  think  fit, 
and  it  was  ordered  that  the  verdict  should  be  subject  to  such 
special  case,  and  that  error  might  be  brought  on  the  judgment 
thereon,  and  on  the  judgment  of  the  Exchequer  Chamber,  in  the 
same  manner  as  on  a  judgment  on  a  special  verdict. 

The  special  case  was  argued  in  the  Court  of  Exchequer  in  Trinity 
Term,  1865,  before  Pollock,  C.  B.,  and  Martin  and  Bramwell,  BB., 
and  judgment  was  given  for  the  defendants  by  Pollock.  C.  B.,  and 
Martin,  B. ;  Bramwell,  B.,  dissenting.  3  H.  &  C.  774;  34  L.  J. 
(Ex.)  177. 

On  this  judgment  the  plaintiff  brought  error.  The  case  stated 
as  follows  :  — 

The  plaintiff  had,  since  1850,  occupied  a  colliery  in  the  township 
of  Ainsworth,  called  the  Eed  House  Colliery,  as  tenant  to  the  Earl 
of  Wilton. 

The  defendants  owned  a  mill,  called  the  Ainsworth  Mill,  lying 
to  the  west  of  the  Bed  House  Colliery. 

In  1860,  the  defendants,  in  pursuance  of  an  arrangement  with 
Lord  Wilton,  made  a  reservoir  for  their  mill  in  other  land  of  Lord 
Wilton's  lying  to  the  north-west  of  the  colliery,  and  separated 
from  it,  and  from  the  mill,  by  lands  belonging  to  two  persons 
named  Hulton  and  Whitehead.  Whitehead's  land  lay  to  the 
north  of  and  adjoining  the  land  over  the  Eed  House  Colliery  ;  on 
the  west   it  adjoined  Hulton's  land;   and  on  all  other  sides  was 


238  ACCIDENT. 


No.  5.  —  Fletcher  v.  Rylands. 


surrounded  by  Lord  Wilton's  land.  Hulton's  land  lay  to  the 
west  of  and  adjoining  Whitehead's  land;  on  the  north  it  adjoined 
the  land  of  Lord  Wilton,  in  which  the  reservoir  was  constructed, 
and  on  the  south  it  adjoined  the  Eed  House  Colliery  and  the  de- 
fendants' mill,  the  mill  being  to  the  west  of  the  colliery. 

The  seams  of  coal  belonging  to  the  Red  House  Colliery  are 
continued  under  the  lands  of  Hulton  and  Whitehead,  and  under 
the  lands  in  which  the  reservoir  was  made,  and  their  dip  is  down- 
wards from  north-east  to  south-west.  The  coal  under  the  site  of 
the  reservoir,  and  under  Lord  Wilton's  land  lying  between  that 
site  and  Hulton's  land,  as  well  as  under  the  lands  of  Hulton  and 
Whitehead,  had  at  some  time  beyond  living  memory  been  partially 
worked ;  and,  before  the  commencement  of  the  plaintiff's  workings 
at  the  Red  House  Colliery,  the  old  coal  workings  under  the  site 
of  the  reservoir  communicated  with  old  coal  workings  under 
Whitehead's  land  by  means  of  the  intervening  old  coal  workings 
under  the  land  of  Hulton  and  under  the  land  of  Lord  Wilton 
lying  to  the  north  of  Hulton's  land. 

Soon  after  the  plaintiff  commenced  to  work  the  Red  House 
Colliery  in  1850  he  made  arrangements  with  Whitehead  to  work 
the  ungotten  coal  lying  under  Whitehead's  land  by  means  of  the 
Red  House  pit ;  and  in  1851  he  accordingly  worked  through  from 
the  Red  House  Colliery  into  the  coal  under  Whitehead's  land, 
and  so  into,  the  old  workings  there.  This  was  done  in  the  first 
instance  without  the  knowledge  of  Lord  Wilton  ;  but  afterwards, 
and  whilst  the  plaintiff  was  working  this  coal  by  the  Red  House 
pit,  the  fact  became  known  to  the  earl's  agents,  and  from  that 
time  the  plaintiff  so  worked  it  without  any  objection  on  the  part 
of  the  earl  or  his  agents. 

In  consequence  of  these  workings,  the  old  coal  workings  under 
the  site  of  the  reservoir  were,  by  means  of  the  intervening  under- 
ground  workings,  made  to  communicate  with  the  plaintiff's  coal 
workings  in  the  Red  House  Colliery  ;  so  that  water  which  found 
its  way  into  the  old  workings  under  the  reservoir  would,  by  means 
of  this  communication,  flow  down  to  and  into  the  Red  House 
Colliery. 

These  underground  communications  were  effected  several  years 
before  the  defendants  commenced  making  their  reservoir,  and 
continued  down  to  the  time  when  it  burst ;  but  until  that  time 
their  existence  was  not  known  to  the  defendants,  nor  to  any  agent 


ACCIDENT.  239 


No.  5.  —  Fletcher  v.  Rylands. 


of  theirs,  nor  to  any  other  person 'employed  by  them;  neither  was 

it  till  that  time  known  to  them,  or  to  any  of  the  persons  employed 
by  them  in  or  about  the  selecting  of  the  site,  or  the  planning  or 
constructing  of  the  reservoir,  that  any  coal  had  been  worked  under 
the  reservoir,  or  under  any  of  the  land  of  Lord  Wilton  lying  to 
the  north  of  Hulton's  land. 

In  the  course  of  constructing  and  excavating  for  the  bed  of  the 
reservoir,  five  old  shafts,  running  vertically  downwards,  were  met 
with  in  the  portion  of  land  selected  for  its  site  ;  but  though  the 
timber  sides  of  three  of  them  remained,  the  shafts  themselves  were 
filled  up  with  soil ;  and  it  was  not  known  to  or  suspected  by  the 
defendants,  or  any  of  the  persons  employed  by  them  in  making  the 
reservoir,  that  they  led  down  to  old  coal  workings  under  its  site. 

For  the  selection  of  the  site,  and  for  the  planning  and  construc- 
tion of  the  reservoir,  it  was  necessary  that  the  defendants  should 
employ  an  engineer  and  contractors ;  and  they  did  for  those 
purposes  employ  a  competent  engineer  and  competent  contract- 
ors, by  whom  the  site  was  selected,  and  the  reservoir  planned 
and  constructed.  On  the  part  of  the  defendants  themselves  there 
was  no  personal  negligence  or  default  whatever  ;  but,  with  reference 
to  the  shafts  met  with,  reasonable  and  proper  care  and  skill  were 
not  exercised  by  the  persons  they  employed,  to  provide  for  the 
sufficiency  of  the  reservoir  to  bear  the  pressure  of  water  which, 
when  filled  to  the  height  proposed,  it  would  have  to  bear. 

The  reservoir  was  completed  about  the  beginning  of  December, 
1860,  and  the  defendants  caused  it  to  be  partially  filled  with  water. 
On  the  morning  of  the  11th  December,  whilst  it  was  thus  partially 
filled  one  of  the  shafts  gave  way  and  burst  downwards,  and  the 
water  flowed  into  the  old  coal  workings  beneath,  and  by  means  of 
the  underground  communications  found  its  way  into  the  coal  work- 
ings in  the  Red  House  Colliery,  and  flooded  the  colliery,  so  that 
its  working  was  necessarily  suspended,  and  after  some  unsuccess- 
ful attempts  to  renew  it,  the  colliery  was  finally  abandoned. 

The  question  stated  for  the  opinion  of  the  court  was  whether 
the  plaintiff  was  entitled  to  recover  any,  and,  if  any,  what  damages 
from  the  defendants,  by  reason  of  the  matters  hereinbefore 
stated.1 

1  The  case  contained  various  state-  there  was  no  argument  or  decision  as  to 
ments  for  the  purpose  of  showing  the  the  amount  of  damages,  those  statements 
damage  suffered  by  the  plaintiff;  but  as     are  omitted.     See  mite  at  end  of  ease. 


240  ACCIDENT. 


No.  5.  —  Fletcher  v.  Rylands. 


Feb.  8.  Manisty,  Q.  0.  (J.  A.  Russell  with  him),  for  the  plaintiff. 
First,  omitting  the  consideration  that  the  defendants  became  ten- 
ants of  Lord  Wilton,  the  plaintiffs  landlord,  subsequently  to  the 
demise  to  the  plaintiff,  and  to  the  making  of  the  works  connect- 
ing the  underground  passages,  and  dealing  with  the  matter  as 
if  they  were  mere  strangers,  the  plaintiff  is  entitled  to  recover 
damages.  The  principle  of  law  which  governs  the  case  is,  that  he 
who  does  upon  his  own  land  acts  which,  though  lawful  in  them- 
selves, may  becomes  sources  of  mischief  to  his  neighbours,  is  bound 
to  prevent  the  mischief  from  occurring,  or  in  the  alternative  to 
make  compensation  to  the  persons  injured.  This  will  be  peculiarly 
the  case  when  the  act  done  consists  in  the  construction  and  use  of 
artificial  works,  for  the  purpose  of  collecting  and  impounding  in 
vast  quantities  an  element  which  will  certainly  cause  mischief  if 
it  escapes.  The  case  does  not  resemble  that  of  a  servient  and  a 
dominant  tenement  with  acquired  rights,  as  seems  to  have  been 
thought  by  Martin,  B.,  in  his  comment  upon  Tenant  v.  Goldwin, 
2  Ld.  Raym,  108'J;  1  Salk.  21,  360,  and  the  duty  is  independent  of 
the  immediate  neighbourhood  of  the  lands.  Neither  is  the  circum- 
stance material  which  is  relied  on  by  the  Chief  Baron,  that  the 
communication  by  which  the  water  passed  was  underground  and 
unseen  ;  for  the  plaintiff's  right  of  action  is  founded  on  his  absolute 
right  to  enjoy  his  property  undisturbed  by  the  acts  of  his  neigh- 
bours, and  is  independent  of  the  amount  of  care  exercised  by  them, 
or  of  their  means  of  knowledge.  This  is  the  effect  of  Lambert  v. 
Bessy,  Sir  T.  Raym.  421,  and  the  opinions  there  pronounced. 

[Blackburn,  J.  In  the  cases  put  there  the  tilings  done  were 
all  prima  facie  wrong,  but  the  difficulty  here  is  in  saying  that 
what  was  rightful  in  the  first  doing,  became  wrongful  in  the  con- 
tinuance. The  other  side  will  contend  that  their  duty  was  to  take 
care,  but  not  to  take  successful  care.] 

The  duty  is  the  same  as  that  of  rendering  support  to  neighbour- 
ing land,  from  which  the  landowner  is  not  excused  by  his  ignor- 
ance of  the  state  of  adjoining  land  which  may  contribute  to  the 
injury,  or  of  the  position  of  the  strata  which  he  cannot  know;  he 
is  absolutely  bound  not  to  injure  his  neighbour  by  the  withdrawal 
of  support.  Bonomi  v.  Backhouse,  9  H.  L.  C.  503 ;  E.  B.  &  E.  622, 
659  ;  27  L.  J.  (Q.  B.)  378  ;  28  L.  J.  (Q.  B.)  378  ;  34  L.  J.  (Q.  B.)  181. 
Similarly  the  mine-owner  who  works  to  the  edge  of  his  land 
subjects  himself  to  the  natural  flow  of  water  into  his  mine,  but  not 


ACCIDENT.  241 


No.  5.  —  Fletcher  v.  Rylands. 


to  the  flow  of  water  artificially  brought  there  by  a  neighbouring 
mine-owner  ;  these  two  propositions  are  established  by  the  cases  of 
Smith  v.  Kenrick,  7  C.  B.  515,  and  Baird  v.  Williamson,  15  C.  B. 
(N.  s.)  37G  ;  33  L.  J.  (C.  P.)  101.  The  case  of  Hodgkinson  v. 
Ennor,  4  11  &  S.  229  ;  32  L.  J.  (Q.  B.)  231,  is  an  authority  for  the 
plaintiff,  resembling  the  present  case  in  the  fact  that  the  commun- 
ication by  which  the  defendant's  dirty  water  flowed  to  the  plain- 
tiff's premises  was  underground. 

[Blackburn,  J.,  referred  to  the  case  of  damage  done  by  the 
bursting  of  waterworks  companies'  reservoirs.] 

Such  cases  usually  arise  under  a  clause  in  the  special  act  of  the 
company,  imposing  on  them  a  liability  to  make  compensation. 
The  case,  however,  of  Bagnall  v.  London  &  North  Western  Bail- 
way  Company,  7  H.  &  N.  423,  452  ;  31  L.J.  (Ex.)  121,  480,  though 
not  so  simple  in  its  circumstances  as  the  present,  is  in  principle 
indistinguishable. 

[Blackburn,  J.  The  point  in  that  case  was,  that  however  the 
water  got  upon  the  line,  the  company  were  bound  by  their  act  to 
have  their  drains  in  order  to  carry  it  off,  and  that  their  drains 
were  not  in  order. 

Willes,  J.  That  was  certainly  the  ground  of  the  judgment  of 
this  court.] 

The  principle  contended  for  is  laid  down  in  Aldred's  case,  9  Rep. 
57  b,  and  in  Williams  v.  Groucott,  4  B.  &  S.  at  p.  157  ;  32  L.  J. 
(Q.  B.)  237,  by  Blackburn,  J.,  who  says  :  "  When  a  party  alters 
things  from  their  normal  condition  so  as  to  render  them  dangerous 
to  already  acquired  rights,  the  law  casts  on  him  the  obligation  of 
fencing  the  danger,  in  order  that  it  shall  not  be  injurious  to  those 
rights  ;  "  and  by  Gibbs,  C.  J.,  in  Sutton  v.  Clarke,  6  Taunt,  at  p.  44, 
who,  distinguishing  the  case  then  before  him,  says :  "  This  case  is 
perfectly  unlike  that  of  an  individual,  who,  for  his  own  benefit, 
makes  an  improvement  on  his  own  land,  according  to  his  best  skill 
and  diligence,  and  not  foreseeing  it  will  produce  any  injury  to  his 
neighbour;  if  he  thereby  unwittingly  injure  his  neighbour,  he  is 
answerable."  The  question  as  to  the  purity  or  impurity  of  the 
water  discharged  is  immaterial,  the  same  principle  applies  to  both 
cases. 

[Blackburn,  J.  It  is  a  different  sort  of  mischief,  but  it  is 
equally  a  mischief.] 

Chauntler  v.  Robinson,  4  Exch.  163-170,  is  no  authority  against 

VOL.  I.  —  1G 


242  ACCIDENT. 


No.  5.  —  Fletcher  v.  Rylands. 


the  plaintiff;  for  it  decides  nothing  but  that  the  owner  of  a 
house  is  not  obliged  to  repair  merely  because  he  is  owner.  The 
ease,  however,  mostly  relied  upon  on  the  other  side  is  Chadwick 
v.  Troiver,  6  Bing.  X.  C.  1  ;  the  plaintiff  there  was  held  to  have  no 
right  to  support  for  his  vault  from  the  vault  of  his  neighbour, 
who  was  ignorant  of  the  existence  of  the  plaintiffs  vault,  and  the 
judgment  proceeded  on  the  ground  of  the  absence  of  right  to  such 
support,  and  on  the  fact  that  no  circumstance  existed  imposing  on 
the  defendant  the  duty  of  care. 

[Lush,  J.  In  fact  the  plaintiff  there  sought  to  impose  a  servi- 
tude on  the  defendants'  premises.] 

Secondly,  the  plaintiff  was  tenant  of  Lord  Wilton,  and  the  com- 
munication was  effected  by  workings  made  with  the  landlord's 
consent  nine  years  before  the  defendants  became  tenants  of  the 
site  of  the  reservoir;  the  defendants  could  only  take  their  land 
subject  to  the  obligation  which  was  imposed  upon  the  landlord  by 
this  state  of  facts. 

Thirdly,  the  defendants  were  liable  for  the  negligence  of  the 
persons  who  made  the  reservoir ;  for,  first,  they  could  not  dis- 
charge themselves  of  their  duty  of  care  by  employing  them,  and 
secondly,  the  knowledge  of  those  persons  of  the  existence  of  the 
shafts  was  notice  to  the  defendants  both  of  the  facts  and  of  the 
danger. 

Mellish,  Q.  C.  (T.  Jones  with  him),  for  the  defendants.  The 
question  is  a  novel  one,  but  authority  and  reason  are  in  favour 
of  the  defendants.  It  is  true  the  defendants  have  altered  the 
condition  of  their  land,  but,  on  the  other  hand,  if  the  plaintiff  had 
left  the  intervening  land  in  its  natural  state,  no  mischief  would 
have  ensued.  The  mischief  was  caused  by  secret  acts  done  partly 
by  strangers,  partly  by  the  plaintiff'  himself,  which  have  broken 
down  the  natural  partition  of  the  lands,  and  opened  the  channels 
by  which  the  water  has  come,  and  it  will  be  strange  if  those  secret 
acts,  not  communicated  to  the  defendants,  should  impose  on  them 
a  liability.  But  on  broad  principles,  there  is  no  such  obligation 
as  is  contended  for  on  the  other  side.  The  only  obligation  on  the 
defendants  is  to  take  care,  that  is,  reasonable  care,  not  to  injure 
the  property  of  others ;  and  to  establish  their  liability  in  this 
action,  it  will  be  necessary  to  go  the  length  of  saying  that  an 
owner  of  real  property  is  liable  for  all  damage  resulting  to  his 
neighbour's  property  from  anything  done  upon  his  own  land.     It 


ACCIDENT.  243 

No.  5.  —  Fletcher  v.  Rylands. 

is  clear  that  there  is  no  such  obligation  with  respect  to  personal 
property.  The  right,  not  to  have  "  foreign  water  ''  sent  upon  one's 
land,  is  nut  a  greater  or  more  important  right  than  the  right  not 
to  have  one's  person  injured;  but  in  the  latter  case  no  right  (if 
action  arises  unless  the  damage  is  caused  by  the  direct  act  of  the 
-defendant  himself,  or  by  his  negligence.  The  same  rule  applies 
to  real  property,  and  though  the  cases  are  fewer  they  arc  to  this 
•effect.  The  instances  in  which  the  owner  of  real  property  has 
been  held  liable  may  be  classified  thus  ;  first,  acts  of  trespass  ; 
second,  acts  purposely  done,  and  which  are  calculated  to  cause  the 
injury  complained  of,  as  in  Aldred's  cane,  9  Eep.  57  b. ;  third,  cases 
where,  by  reason  of  the  natural  relation  of  the  properties,  a  legal 
relation  has  been  constituted  between  them  ;  as  in  the  case  of  the 
right  to  support,  or  the  right  to  a  watercourse,  which  are  natural 
easements,  and  as  to  which  the  plaintiff  need  not  allege  any  special 
title  in  himself,  nor  any  negligence  in  the  defendant.  Here  no 
right  of  this  latter  class  is  involved,  but  the  right  is  the  same  as 
the  right  of  any  subject  not  to  be  injured  by  any  other  subject ; 
and  the  fallacy  in  the  judgment  of  Bramwell,  B.,  in  the  court  below, 
is,  in  assuming  that  there  is  any  such  right  as  "  to  be  free  from 
foreign  water,"  or  "  not  to  have  water  turned  in  upon  one."  There 
is  no  such  right  distinct  from  the  general  right  of  ownership  in  the 
soil,  and  the  case  stands  on  the  same  footing  as  if  the  owner  had 
himself  been  drowned  at  the  bottom  of  the  mine.  The  second 
olass  of  cases  is  illustrated  by  Hodgkinson  v.  Ennor,  4  B.  &  S.  229  ; 
o2  L.  J.  (Q.  B.)  231,  for  it  was  there  found  as  a  fact  that  the 
defendant  knew  that  the  channel  down  which  he  poured  the  dirty 
water  would  carry  it  to  the  plaintiff's  premises  ;  he  threw  it  into 
the  swallet  meaning  that  it  should  be  carried  away,  and  it  might 
perhaps  be  admitted  that,  having  done  this  intentionally,  he  would 
be  liable  whether  he  knew  where  it  would  go  to  or  not ;  but  the 
defendants  here  have  tried  to  keep  the  water  in,  but  by  its  own 
weight  it  has  forced  its  way  through. 

[LUSH,  J.  Suppose  the  bank  of  the  reservoir  had  burst,  and 
the  water  had  flowed  over  the  surface  and  down  the  pit's  mouth.] 

The  distinction  between  the  surface  and  underground  passages 
is  only  material  as  a  circumstance  of  negligence  ;  with  reference 
to  the  surface,  the  facts  are  known  which  give  rise  to  the  obliga- 
tion  to  take  care,  but  the  ignorance  of  the  state  of  things  under- 
ground takes  away  the  opportunity  of  exercising  care,  and  there- 


244  ACCIDENT. 


No.  5.  —  Fletcher  v.  Rylands. 


fore  the  duty  to  exercise  it.  It  is  for  this  purpose  only  that  the 
defendants  rely  on  the  case  of  Chadwick  v.  Trower,  6  Bing.  N.  C.  1  ; 
supposing  it  made  out  that  there  is  no  liability  except  where  there 
is  carelessness,  that  case  shows  that  there  can  be  no  carelessness 
where  there  is  no  knowledge,  nor  any  circumstances  giving  the 
means  of  obtaining  knowledge,  with  a  duty  to  know  ;  and  there  is 
no  case  where  a  defendant  has  been  held  liable  without  such 
knowledge  or  notice.  That  being  so,  it  is  immaterial  whether 
or  not  the  duty  to  take  care  means  a  duty  to  insure  against  all 
consequences,  for  the  occasion  of  that  duty  has  never  arisen. 

[Blackbukn,  J.  The  present  point  may  be  illustrated  thus; 
suppose  a  man  leans  against  my  cart,  if  I  remove  the  cart  sud- 
denly, and  without  warning,  not  knowing  he  is  there,  I  am  not 
liable,  but  if  I  do  so  knowing  that  he  is  there,  though  he  has  no 
right  to  lean  against  my  cart,  yet  1  am  liable  if  my  act  injures  him. 

Willes,  J.  Take  the  case  of  a  continuous  nuisance,  I  mean 
continuous  in  its  own  character  ;  the  person  who  erects  it  is  liable 
at  once,  the  person  who  succeeds  to  it  is  not  liable  unless  he  lias 
notice  and  continues  it,  but  it  is  said  that  as  soon  as  he  has  notice 
of  it  he  must  abate.  Suppose  a  man  to  collect  a  quantity  of 
springs  in  such  a  manner  as  to  cause  them  to  pour  down  his 
neighbour's  mine.  Assuming  that  the  person  who  succeeded  to 
the  possession  of  the  land  where  the  springs  were  so  collected 
would  not  be  liable  until  notice,  yet  you  would  admit  that  upon 
receiving  notice  he  would  be  liable  for  continuing  it.  Then  is 
there  any  case  where  the  same  doctrine  has  been  held  to  apply  to 
the  originator  of  the  nuisance?] 

It  is  submitted  that  the  liability  would  turn  on  the  defendants' 
knowledge,  and  that  in  each  case  knowledge  is  the  essential  con- 
dition of  liability.  In  the. absence  of  any  authority  distinguishing 
liability  in  respect  of  injury  to  real  property  from  liability  in 
respect  of  other  injuries,  the  doctrine  laid  down  as  to  actions 
of  the  latter  kind  applies,  and  in  these  it  is  clear  that  negligence 
must  be  shown.  This  is  illustrated  by  the  case  of  Scott  v.  London 
Dock  Company,  3  H.  &  C.  596;  34  L.  J.  (Ex.)  17,  220,  where  it 
was  never  doubted  that  negligence  must  be  alleged  and  proved,  and 
the  only  question  was,  whether  the  fact  that  the  bale  which  fell 
was  under  the  management  of  the  defendants'  servants  was  suffi- 
cient prima  facie  evidence  of  negligence.  A  common  instance  is 
that  of  collisions  of  ships  at  sea,  or  accidents  caused  by  driving  or 


ACCIDENT.  245 

No.  5.  —  Fletcher  v.  Rylands. 

riding  along  the  highway,  as  Hammack  v.  White,  11  C.  B.  (x.  S.) 
588;  31  L.  J.  (C.  P.)  129,  in  all  which  cases  without  negligence 
there  is  no  liability. 

LUSH,  J.  Suppose  the  case  of  a  gunpowder  magazine  bursting, 
what  liability  do  you  say  its  owners  would  incur  ?  ] 

None,  if  there  was  no  negligence  as  to  the  place  where  the 
powder  was  kept,  or  in  the  manner  of  keeping  it.  The  liability  as 
to  tire,  formerly  an  absolute  duty  to  insure  against  all  mischief 
caused  to  your  neighbours  by  tire  arising  on  your  own  property, 
is  said  to  have  been  by  the  custom  of  the  realm:  Turbervil  v. 
Stamp,  1  Salk.  13  ;  Com.  Dig.,  Action  on  the  Case  for  Negligence, 
(A  (3) ;  and  since  the  passing  of  14  Geo.  III.  c.  78,  and  the  decision 
upon  §  86  of  that  act  in  Filliter  v.  Phippard,  11  Q.  B.  347, 
the  liability  for  injury  by  fire  is  restricted  to  mischief  arising 
from  negligence,  that  is,  it  is  put  on  the  same  footing  as  liability 
for  other  injuries.  The  sum  of  the  argument  is,  that  to  make  the 
defendant  liable  a  wrongful  act  must  be  shown,  and  that  to  prove 
the  act  wrongful  you  must  prove  it  negligent. 

[Willes,  J.,  referred  to  Gregory  v.  Piper,  9  B.  &  C.  591.] 

That  was  a  case  of  trespass,  to  which  this  cannot  be  compared, 
nor  is  there  any  count  in  trespass  here.  In  Gregory  v.  Piper,  supra, 
it  was  proved  to  be  impossible  that  the  act  of  the  defendant's  ser- 
vant could  be  done  as  the  defendant  directed  without  committing 
a  trespass ;  the  act,  therefore,  became  the  direct  act  of  the  defend- 
ant, and  that  was  the  ground  of  the  judgment.  The  distinction 
is  between  acts  done  directly  by  the  defendant,  which  include  all 
acts  which  are  specifically  directed  by  him,  although  not  done  by 
him  physically  or  in  his  presence,  and  things  which  are  only  the 
consequences  of  what  he  does  or  directs  to  be  done  ;  it  is  in  respect 
of  these  last  that  negligence  is  material. 

[Blackbukx,  J.,  referred  to  Tenant  v.  Goldwin,  2  Ld.  Etaym. 
108',);  1  Salk.  21,  360;  6  Mod.  311;  Holt,  500.] 

That  case  is  open  to  the  same  observation  ;  the  mischief  was  the 
inevitable  consequence  of  the  combined  facts  that  the  defendant 
put  the  tilth  there,  and  that  he  did  not  repair  the  wall,  which  was 
his  own  wall.  The  case  may  indeed  be  put  as  a  case  of  negligence, 
the  negligence  consisting  in  taking  no  care  to  prevent  the  tilth 
from  flowing  into  his  neighbour's  premises. 

With  respect  to  the  cases  cited  upon  the  other  side,  they  are  all 
distinguishable.     Bonomi  v.  Backhouse,  9  H.   L.  C.  503;  34  L.  J. 


246  ACCIDENT. 


No.  5.  —  Fletcher  v.  Rylands. 


(Q.  B.)  181,  belongs  to  the  third  class  of  cases  mentioned  above, 
and  depended  on  the  right  arising  by  reason  of  the  contiguity  of 
the  lands.  Lambert  v.  Bessy,  Sir  T.  Ray m.  421,  was  a  case  of 
trespass.  Bitird  v.  Williamson,  15  C.  B.  (n.  s.)  376  ;  33  L.  J.  (C.  P.) 
101,  was  a  case  in  which  the  defendant  purposely  caused  the 
water  to  flow  into  the  adjoining  mine ;  no  right  is  contended  for 
here  to  use  the  plaintiff's  land  as  an  outlet.  On  the  other  hand, 
the  language  used  in  Smith  v.  Kenrick,  7  C.  B.  at  p.  564,  supports 
the  defendants'  contention  :  "  It  would  seem  to  be  the  natural  right 
of  each,  of  the  owners  of  two  adjoining  coal  mines  —  neither  being 
subject  to  any  servitude  to  the  other  —  to  work  his  own  in  the 
manner  most  convenient  and  beneficial  to  himself,  although  the 
natural  consequence  may  be  that  some  prejudice  will  accrue  to 
the  owner  of  the  adjoining  mine,  so  long  as  that  does  not  arise 
from  the  negligent  or  malicious  couduct  of  the  party."  Aldred's 
case,  9  Rep.  57  b,  was  also  an  instance  of  an  act  purposely  done, 
and  calculated  to  cause  a  nuisance  :  Bagnall  v.  London  &  North 
Western,  Railway  Company,  7  H.  &  N.  423  ;  31  L.  J.(Ex.),  121,  480, 
turned  upon  the  obligation  imposed  upon  the  company  by  their 
act.  As  to  the  dictum  of  Gibbs,  C.  J.,  in  Sutton  v.  Clarice,  6 
Taunt,  at  p.  44,  it  was  pronounced  obiter,  the  decision  in  the  case 
being  in  favour  of  the  defendants  on  the  ground  that  they  were 
public  trustees. 

Secondly,  the  defendant  is  not  liable  for  the  negligence  of  the 
contractors  employed  by  him.  It  was  laid  down  in  Butler  v. 
Hunter,  7  H.  &  X.  826  ;  31  L.  J.  (Ex.)  214,  that  when  one  gives  an 
order  to  a  skilled  person  to  do  a  particular  thing,  he  must  be 
taken  to  mean  that  it  shall  be  done  with  the  proper  precautions. 
The  negligence  of  the  contractor  w<is  negligence  towards  his 
employer  as  well  as  towards  third  persons,  and  he,  as  the  wrong- 
doer, is  liable  to  actions  by  both  parties,  who  have  been  both  in 
different  ways  injured  by  his  carelessness ;  but,  the  plaintiff  having 
a  right  of  action  against  him,  there  is  a  presumption  against  the 
liability  of  the  defendants,  for  the  plaintiff  would  then  have  a 
double  remedy. 

[Willes,  j",  referred  to  Pichard  v.  Smith,  10  C.  B.  (N.  s.)  470.1] 

1  The   defendant   occupied    a    refresh-  going  along  the  platform,  fell  down  the 

ment-room   and  coal    cellar  at  a  railway  opening  whilst   the   trap-door  was  raised 

station,  the  trap  of  the  coal  cellar  heing  in  lor  the  purpose  of  the  coal-merchant  dis- 

the  platform  of  the  station.     The  plain-  charging   coal    into    the   cellar,  and   was 

tiff,  a  passenger  by  the  railway,  as  lie  was  under  the  coal  merchant's  control.    It  was 


ACCIDENT.  247 

No.  5.       Fletcher  v.  Rylands. 

Manisty,  Q.  C,  in  reply.  It  seems  to  be  admitted  that  if  a 
trespass  has  been  committed  the  defendants  are  liable  ;  and  here 
the  collecting  of  the  water  in  such  a  manner  as  to  invade  the 
premises  of  the  plaintiff  was  a  trespass;  as  there  would  have  been 
a  trespass  in  Boaomi  v.  Backhouse,  9  H.  L.  C.  503  ;  34  L.  J.  (Q.  15.) 
181,  if  the  consequence  of  the  withdrawal  of  support  had  been  to 
let  down  a  house  upon  the  plaintiff's  land;  and  as  the  flow  of  tin- 
tilth  is  actually  described  to  be  in  Tenant  v.  Goldwin,  2  Ld.  Raym. 
1089;  1  Salk.  21,  360.  He  also  referred  to  the  case  of  Barber 
v.  Nottingham  &  Grantham  Railway  Company,  15  C.  B.  (x.  s.) 
726 ;  33  L.  J.  (C.  P.)  193,  handed  to  him  by  McMahon. 

[Hellish,  Q.  C.  That  case  turned  on  the  language  of  the  defend- 
ants' special  act ;  I  argued  the  case,  and  the  court  refused  to  give 
any  answer  to  my  question,  whether  at  common  law  an  action 
would  lie.]  Cur.  adv.  vidt. 

May  14.  The  judgment  of  the  court  (Willes,  Blackburn,  Keat- 
ing, Mellok,  Montague  Smith,  and  Lush,  J  J.)  was  delivered  by 

Blackbukn,  J.  This  was  a  special  case  stated  by  an  arbitrator, 
under  an  order  of  nisi  prius,  in  which  the  question  for  the  court 
is  stated  to  be,  whether  the  plaintiff  is  entitled  to  recover  any,  and, 
if  any,  what  damages  from  the  defendants,  by  reason  of  the  matters 
thereinbefore  stated. 

In  the  Court  of  Exchequer,  the  Chief  Baron  and  Martin,  B., 
were  of  opinion  that  the  plaintiff  was  not  entitled  to  recover  at  all, 
Bramwell,  B.,  being  of  a  different  opinion.  The  judgment  in  the 
Exchequer  wras  consequently  given  for  the  defendants,  in  conformity 
with  the  opinion  of  the  majority  of  the  court.  The  only  question 
argued  before  us  was,  whether  this  judgment  was  right,  nothing 
being  said  about  the  measure  of  damages  in  case  the  plaintiff 
should  be  held  entitled  to  recover.  "We  have  come  to  the  conclusion 
that  the  opinion  of  Bramwell,  B.,  was  right,  and  that  the  answer 
to  the  question  should  be  that  the  plaintiff  was  entitled  to  recover 
damages  from  the  defendants,  by  reason  of  the  matters  stated  in 

held  that  the  defendant  was  liable  as  the  plicable  to  cases  in  which  the  act  which 

occupier  of  the  cellar;  and  in  delivering  occasions    the    injury  is    one    which    the 

the  judgment  of  the  court,  Williams,  J.,  contractor  was  employed  to  do;   nor,  by 

after  referring  to  the  rule  which  exempts  parity  of  reasoning,  to  cases  in  which  the 

the  employer  from  liability  for  the  negli-  contractor  is  entrusted  witli  the  perform- 

gence  of   an  independent  contractor  em-  ance  of  a  duty  incumbent  on  his  employer, 

ployed  by  him  to  do  a  lawful  act,  says  and    neglects  its   fulfilment,   whereby  an 

(p.  480)  :  "The  rule,  however,  is  not  ap-  injury  is  occasioned." 


248  ACCIDENT. 


No.  5.  —  Fletcher  v.  Rylands. 


the  case,  and  consequently,  that  the  judgment  below  should  be 
reversed,  but  we  cannot  at  present  say  to  what  damages  the 
plaintiff  is  entitled. 

It  appears  from  the  statement  in  the  case,  that  the  plaintiff  was 
damaged  by  his  property  being  flooded  by  water,  which,  without 
any  fault  on  his  part,  broke  out  of  a  reservoir  constructed  on  the 
defendants'  land  by  the  defendants'  orders,  and  maintained  by  the 
defendants. 

It  appears  from  the  statement  in  the  case,  p.  238,  supra,  that 
the  coal  under  the  defendants'  land  had,  at  some  remote  period, 
been  worked  out ;  but  this  was  unknown  at  the  time  when  the  de- 
fendants gave  directions  to  erect  the  reservoir,  and  the  water  in 
the  reservoir  would  not  have  escaped  from  the  defendants'  land, 
and  no  mischief  would  have  been  done  to  the  plaintiff,  but  for  this 
latent  defect  in  the  defendants'  subsoil.  And  it  further  appears, 
p.  239,  supra,  that  the  defendants  selected  competent  engineers 
and  contractors  to  make  their  reservoir,  and  themselves  personally 
continued  in  total  ignorance  of  what  we  have  called  the  latent 
defect  in  the  subsoil ;  but  that  these  persons  employed  by  them  in 
the  course  of  the  work  became  aware  of  the  existence  of  the  ancient 
shafts  filled  up  with  soil,  though  they  did  not  know  or  suspect 
that  they  were  shafts  communicating  with  old  workings. 

It  is  found  that  the  defendants,  personally,  were  free  from  all 
blame,  but  that  in  fact  proper  care  and  skill  was  not  used  by  the 
persons  employed  by  them,  to  provide  for  the  sufficiency  of  the 
reservoir  with  reference  to  these  shafts.  The  consequence  was, 
that  the  reservoir  when  filled  with  water  burst  into  the  shafts,  the 
water  flowed  down  through  them  into  the  old  workings,  and  thence 
into  the  plaintiff's  mine,  and  there  did  the  mischief. 

The  plaintiff,  though  free  from  all  blame  on  his  part,  must  bear 
the  loss,  unless  he  can  establish  that  it  was  the  consequence  of 
some  default  for  which  the  defendants  are  responsible.  The  question 
of  law  therefore  arises,  what  is  the  obligation  which  the  law  casts 
on  a  person  who,  like  the  defendants,  lawfully  brings  on  his  land 
something  which,  though  harmless  whilst  it  remains  there,  will 
naturally  do  mischief  if  it  escape  out  of  his  land.  It  is  agreed 
on  all  hands  that  he  must  take  care  to  keep  in  that  which  he  has 
brought  on  the  land  and  keeps  there,  in  order  that  it  may  not 
escape  and  damage  his  neighbours  ;  but  the  question  arises  whether 
the  duty  which  the  law  casts  upon  him,  under  such  circumstances, 


ACCIDENT.  249 


No.  5.  —  Fletcher  v.  Rylands. 


is  an  absolute  duty  to  keep  it  in  at  his  peril,  or  is,  as  the  majority 

of  the  Court  of  Exchequer  have  thought,  merely  a  duty  to  take 
all  reasonable  and  prudent  precautions  in  order  to  keep  it  in,  but 
no  more.  If  the  first  be  the  law,  the  person  who  has  brought  on 
his  land  and  kept  there  something  dangerous,  and  failed  to  keep 
it  in,  is  responsible  for  all  the  natural  consequences  of  its  escape. 
If  the  second  be  the  limit  of  his  duty,  he  would  not  be  answerable 
except  on  proof  of  negligence,  and  consequently  would  not  be 
answerable  for  escape  arising  from  any  latent  defect  which  ordi- 
nary prudence  and  skill  could  not  detect. 

Supposing  the  second  to  be  the  correct  view  of  the  law,  a  further 
question  arises  subsidiary  to  the  first,  viz.,  whether  the  defendants 
are  not  so  far  identified  with  the  contractors  whom  they  employed, 
as  to  be  responsible  for  the  consequences  of  their  want  of  care  and 
skill  in  making  the  reservoir  in  fact  insufficient  with  reference  to 
the  old  shafts  of  the  existence  of  which  they  were  aware,  though 
they  had  not  ascertained  where  the  shafts  went  to. 

We  think  that  the  true  rule  of  law  is,  that  the  person  who  for 
his  own  purposes  brings  on  his  lands  and  collects  and  keeps 
there  anything  likely  to  do  mischief  if  it  escapes,  must  keep  it  in 
at  his  peril,  and,  if  he  does  not  do  so,  is  prima  facie  answerable 
for  all  the  damage  which  is  the  natural  consequence  of  its  escape. 
He  can  excuse  himself  by  showing  that  the  escape  was  owing  to 
the  plaintiff's  default;  or  perhaps  that  the  escape  was  the  con- 
sequence of  vis  major,  or  the  act  of  God ;  but  as  nothing  of  this 
sort  exists  here,  it  is  unnecessary  to  inquire  what  excuse  would 
be  sufficient.  The  general  rule,  as  above  stated,  seems  on  princi- 
ple just.  The  person  whose  grass  or  corn  is  eaten  down  by  the 
escaping  cattle  of  his  neighbour  or  whose  mine  is  flooded  by 
the  water  from  his  neighbour's  reservoir,  or  whose  cellar  is  in- 
vaded by  the  filth  of  his  neighbour's  privy,  or  whose  habitation  is 
made  unhealthy  by  the  fumes  and  noisome  vapours  of  his  neigh- 
bour's alkali  works,  is  damnified  without  any  fault  of  his  own; 
and  it  seems  but  reasonable  and  just  that  the  neighbour,  who  has 
brought  something  on  his  own  property  which  was  not  naturally 
there,  harmless  to  others  so  long  as  it  is  confined  to  his  own  prop- 
erty, but  which  he  knows  to  be  mischievous  if  it  gets  on  his 
neighbour's,  should  be  obliged  to  make  good  the  damage  which 
ensues  if  he  does  not  succeed  in  confining  it  to  his  own  property. 
But  for  his  act  in  bringing  it  there  no  mischief  could  have  accrued, 


250  ACCIDENT. 


No.  5.  —  Fletcher  v.  Rylands. 


and  it  seems  but  just  that  he  should  at  his  peril  keep  it  there  so 
that  no  mischief  may  accrue,  or  answer  for  the  natural  and  antici- 
pated consequences.  And  upon  authority,  this  we  think  is  es- 
tablished to  be  the  law  whether  the  things  so  brought  be  beasts, 
or  water,  or  filth,  or  stenches. 

The  case  that  has  most  commonly  occurred,  and  which  is  most 
frequently  to  be  found  in  the  books,  is  as  to  the  obligation  of  the 
owner  of  cattle  which  he  has  brought  on  his  land,  to  prevent  their 
escaping  and  doing  mischief.  The  law  as  to  them  seems  to  be  per- 
fectly settled  from  early  times ;  the  owner  must  keep  them  in  at  his 
peril,  or  he  will  be  answerable  for  the  natural  consequences  of 
their  escape ;  that  is,  with  regard  to  tame  beasts,  for  the  grass  they 
eat  and  trample  upon,  though  not  for  any  injury  to  the  person  of 
others,  for  our  ancestors  have  settled  that  it  is  not  the  general 
nature  of  horses  to  kick,  or  bulls  to  gore;  but  if  the  owner  knows 
that  the  beast  has  a  vicious  propensity  to  attack  man,  he  will  be 
answerable  for  that  too. 

As  early  as  the  Year  Book,  20  Ed.  IV.  11,  placitum  10,  Brian, 
C.  J.,  lays  down  the  doctrine  in  terms  very  much  resembling  those 
used  by  Lord  Holt  in  Tenant  v.  Goldmn,  2  Ld.  Bavin.  1089;  1 
Salk.  360,  which  will  be  referred  to  afterwards.  It  was  trespass 
with  cattle.  Plea,  that  the  defendant's  land  adjoined  a  place  where 
defendant  had  common,  that  the  cattle  strayed  from  the  common, 
and  defendant  drove  them  back  as  soon  as  he  could.  It  was  held 
a  bad  plea.  Brian,  C.  -I.,  says:  "It  behoves  him  to  use  his  com- 
mon so  that  he  shall  do  no  hurt  to  another  man,  and  if  the  land  in 
which  he  has  common  be  not  enclosed,  it  behoves  him  to  keep  the 
beasts  in  the  common  and  out  of  the  land  of  any  other."  He  adds, 
when  it  was  proposed  to  amend  by  pleading  that  they  were 
driven  out  of  the  common  by  dogs,  that  although  that  might  give 
a  right  of  action  against  the  master  of  the  dogs,  it  was  no  defence 
to  the  action  of  trespass  by  the  person  on  whose  land  the  cattle 
went.  In  the  recent  case  of  Cox  v.  Burbidge,  13  C.  B.  (n.  s).,  at 
p.  438;  32  I,  J.  (C.  B.)  89,  Williams,  J.,  says,  "I  apprehend  the 
general  rule  of  law  to  be  perfectly  plain.  If  I  am  the  owner  of 
an  animal  in  which  by  law  the  right  of  property  can  exist,  I  am 
bound  to  take  care  that  it  does  not  stray  into  the  land  of  my 
neighbour,  and  I  am  liable  for  any  trespass  it  may  commit,  and  for 
the  ordinary  consequences  of  that  trespass.  Whether  or  not  the 
escape    of    the    animal    is    due    to     my    negligence    is    altogether 


ACCIDENT.  251 

No.  5.  —  Fletcher  v.  Rylands. 

immaterial."  So  in  May  v.  Burdett,  9  Q.  B.  at  p.  112,  the  court, 
after  an  elaborate  examination  of  the  old  precedents  and  authori- 
ties, came  to  the  conclusion  that,  "  a  person  keeping  a  mischievous 
animal,  with  knowledge  of  its  propensitieSj  is  bound  to  keep  it 
.secure  at  his  peril."  And  in  1  Hale's  Pleas  of  the  Crown, 430,  Lord 
Hale  states  that  where  one  keeps  a  beast,  knowing  its  nature 
or  habits  are  such  that  the  natural  consequence,  of  his  being 
loose  is  that  he  will  harm  men,  the  owner  "  must  at  his  peril 
keep  him  up  safe  from  doing  hurt,  for  though  he  use  his  dili- 
gence to  keep  him  up,  if  he  escape  and  do  harm,  the  owner  is 
liable  to  answer  damages  ;  "  though,  as  he  proceeds  to  show,  he 
will  not  be  liable  criminally  without  proof  of  want  of  care.  In 
these  latter  authorities  the  point  under  consideration  was  damage 
to  the  person,  and  what  was  decided  was,  that  where  it  was  known 
that  hurt  to  the  person  was  the  natural  consequence  of  the  animal 
being  loose,  the  owner  should  be  responsible  in  damages  for  such 
hurt,  though  where  it  was  not  known  to  be  so,  the  owner  was  not 
responsible  for  such  damages  ;  but  where  the  damage  is,  like  eat- 
ing grass  or  other  ordinary  ingredients  in  damage  feasant,  the 
natural  consequence  of  the  escape,  the  rule  as  to  keeping  in  the 
animal  is  the  same.  In  Com.  Dig.  Droit  (M.  2)  it  is  said  that, 
"  if  the  owner  of  200  acres  in  a  common  moor  enfeoffs  B.  of  50 
acres,  B.  ought  to  enclose  at  his  peril,  to  prevent  damage  by  his 
cattle  to  the  other  150  acres.  For  if  his  cattle  escape  thither 
they  may  be  distrained  damage  feasant.  So  the  owner  of  the  150 
acres  ought  to  prevent  his  cattle  from  doing  damage  to  the  50 
acres  at  his  peril."  The  authority  cited  is  Dyer,  .372  b.,  where 
the  decision  was  that  the  cattle  might  be  distrained  ;  the  inference 
from  that  decision,  that  the  owner  was  bound  to  keep  in  his  cattle 
at  his  peril,  is,  we  think,  legitimate,  and  we  have  the  high 
authority  of  Comyns  for  saying  that  such  is  the  law.  In  the  note 
to  Fitzherbert  Nat.  Brevium,  128,  which  is  attributed  to  Lord 
Hale,  it  is  said,  "If  A.  and  B.  have  lands  adjoining  where  there 
is  no  inclosure,  the  one  shall  have  trespass  against  the  other  on  an 
esape  of  their  beasts  respectively,  Dyer,  372,  Rastal  Ent.  621,  20 
Ed.  IV.  10,  although  wild  dogs,  &c,  drive  the  cattle  of  the  one  into 
the  lands  of  the  other."  No  case  is  known  to  us  on  which  in 
replevin  it  has  ever  been  attempted  to  plead  in  bar  to  an  avowry 
for  distress  damage  feasant,  that  the  cattle  had  escaped  without 
any  negligence  on  the  part  of  the  plaintiff,  and  surely  if  that  could 


252  ACCIDENT. 


No.  5.  —  Fletcher  v.  Rylands. 


have  been  a  good  plea  in  bar,  the  facts  must  often  have  been  such 
as  would  have  supported  it.  These  authorities,  and  the  absence  of 
any  authority  to  the  contrary,  justify  Williams,  J.,  in  saying,  as  he 
does  in  Cox  v.  Burbidge,  13  C.  B.  (n.  s.)  at  p.  438  ;  32  L.  J.  (C.  P.) 
89,  that  the  law  is  clear  that  in  actions  for  damage  occasioned  by 
animals  that  have  been  kept  in  by  their  owners,  it  is  quite  imma- 
terial whether  the  escape  is  by  negligence  or  not. 

As  has  been  already  said,  there  does  not  appear  to  be  any 
difference  in  principle,  between  the  extent  of  the  duty  cast  on  him 
who  brings  cattle  on  his  land,  to  keep  them  in,  and  the  extent  of 
the  duty  imposed  on  him  who  brings  on  his  land,  water,  filth,  or 
stenches,  or  any  other  thing  which  will,  if  it  escape,  naturally  do 
damage,  to  prevent  their  escaping  and  injuring  his  neighbour,  and 
the  case  of  Tenant  v.  Goldwin,  1  Salk.  21,  360  ;  2  Ld.  Eaym.  1089  ;  6 
Mod.  311,  is  an  express  authority  that  the  duty  is  the  same,  and  is, 
to  keep  them  in  at  his  peril. 

As  Martin,  11,  in  his  judgment  below  appears  not  to  have 
understood  that  case  in  the  same  manner  as  we  do,  it  is  proper  to 
examine  it  in  some  detail.  It  was  a  motion  in  arrest  of  judg- 
ment after  judgment  by  default,  and  therefore  all  that  was  well 
pleaded  in  the  declaration  was  admitted  to  be  true.  The  declara- 
tion is  set  out  at  full  length  in  the  report  in  6  Mod.  p.  311.  It 
alleged  that  the  plaintiff  had  a  cellar  which  lay  contiguous  to  a 
messuage  of  the  defendant,  "  and  used  (solebat)  to  be  separated 
and  fenced  from  a  privy  house  of  office,  parcel  of  the  said  messuage 
of  defendant,  by  a  thick  and  close  wall,  which  belongs  to  the 
said  messuage  of  the  defendant,  and  by  the  defendant  of  right 
ought  to  have  been  repaired  (jure  dehuit  reparari)"  Yet  he  did  not 
repair  it,  and  for  want  of  repair  filth  flowed  into  plaintiff's  cellar. 
The  case  is  reported  by  Salkeld,  who  argued  it,  in  6  Mod.,  and  by 
Lord  Raymond,  whose  report  is  the  fullest.  The  objection  taken 
was  that  there  was  nothing  to  show  that  the  defendant  was  under 
any  obligation  to  repair  the  wall,  that,  it  was  said,  being  a  charge 
not  of  common  right,  and  the  allegation  that  the  wall  de  jure 
delimit  reparari  by  the  defendant  being  an  inference  of  law  which 
did  not  arise  from  the  facts  alleged.  Salkeld  argued  that  this 
general  mode  of  stating  the  right  was  sufficient  in  a  declaration, 
and  also  that  the  duty  alleged  did  of  common  right  result  from 
the  facts  stated.  It  is  not  now  material  to  inquire  whether  he 
was  or  was  not  right  on  the  pleading  point.     All    three  reports 


ACCIDENT.  253 

No.  5.  —  Fletcher  v.  Rylands. 


concur  in  saying  that  Lord  Holt,  during  the  argument,  intimated  an 
opinion  against  him  on  that,  but  that  after  consideration  the  court 
gave  judgment  for  him  on  the  second  ground.  In  the  report  of  ti 
Mod.  at  p.  314,  it  is  stated,  "And  at  another  day  per  totam  curium  .- 
The  declaration  is  good  ;  for  there  is  a  sufficient  cause  of  action  ap- 
pearing in  it;  but  not  upon  the  word  'solebat.'  If  the  defendant 
has  a  house  of  office  inclosed  with  a  wall  which  is  his,  he  is  of 
common  right  bound  to  use  it  so  as  not  to  annoy  another.  .  .  .  The 
reason  here  is,  that  one  must  use  his  own  so  as  thereby  not  to  hurt 
another,  and  as  of  common  right  one  is  bound  to  keep  his  cattle 
from  trespassing  on  his  neighbour,  so  he  is  bound  to  use  anything 
that  is  his  so  as  not  to  hurt  another  by  such  user.  .  .  .  Suppose  one 
sells  a  piece  of  pasture  lying  open  to  another  piece  of  pasture 
which  the  vendor  has,  the  vendee  is  bound  to  keep  his  cattle  from 
running  into  the  vendor's  piece  ;  so  of  dung  or  anything  else." 
There  is  here  an  evident  allusion  to  the  same  case  in  Dyer  (see 
ante,  p.  251  ,  as  is  referred  to  in  Com.  Dig.  Droit  (M.  2).  Lord 
Raymond  in  his  report,  2  Ld.  Raym.  at  p.  1092,  says  :  "  The  last  day 
of  term,  Holt,  C.  J.,  delivered  the  opinion  of  the  court,  that  the  dec- 
laration was  sufficient.  He  said  that  upon  the  face  of  this  declar- 
ation there  appeared  a  sufficient  cause  v)f  action  to  entitle  the 
plaintiff  to  have  his  judgment ;  that  they  did  not  go  upon  the 
solebat,  or  the  jure  debuit  rejoarari,  as  if  it  were  enough  to  say  that 
the  plaintiff  had  a  house,  and  the  defendant  had  a  wall,  and  lie 
ought  to  repair  the  wall ;  but  if  the  defendant  has  a  house  of 
office,  and  the  wall  which  separates  the  house  of  office  from  the 
plaintiffs  house  is  all  the  defendant's,  he  is  of  common  right  bound 
to  repair  it.  .  .  .  The  reason  of  this  case  is  upon  this  account,  that 
every  one  must  so  use  his  own  as  not  to  do  damage  to  another ; 
and  as  every  man  is  bound  so  to  look  to  his  cattle  as  to  keep  them 
out  of  his  neighbour's  ground,  that  so  he  may  receive  no  damage  ; 
so  he  must  keep  in  the  filth  of  his  house  of  office,  that  it  may  not 
flow  in  upon  and  damnify  his  neighbour.  ...  So  if  a  man  has  two 
pieces  of  pasture  which  lie  open  to  one  another,  and  sells  one  piece, 
the  vendee  must  keep  in  his  cattle  so  as  they  shall  not  trespass 
upon  the  vendor.  So  a  man  shall  not  lay  his  dung  so  high  as  to 
damage  his  neighbour,  and  the  reason  of  these  cases  is  because 
every  man  must  so  use  his  own  as  not  to  damnify  another." 
Salkeld,  who  had  been  counsel  in  the  case,  reports  the  judgment 
much  more  concisely,  1  Salk.  361,  but  to  the  same  effect;  he  says  : 


254  ACCIDENT. 


No.  5.  —  Fletcher  v.  Rylands. 


"  The  reason  lie  gave  for  bis  judgment  was  because  it  was  the  de- 
fendant's wall,  and  the  defendant's  filth,  and  he  was  bound  of  com- 
mon right  to  keep  his  wall  so  as  his  filth  might  not  damnify  his 
neighbour,  and  that  it  was  a  trespass  on  his  neighbour,  as  if  his 
beasts  should  escape,  or  one  should  make  a  great  heap  on  the 
border  of  his  ground,  and  it  should  tumble  and  roll  down  upon  his 
neighbour's ;  ...  he  must  repair  the  wall  of  his  house  of  office,  for 
he  whose  dirt  it  is  must  keep  it  that  it  may  not  trespass."  Tt  is 
worth  noticing  how  completely  the  reason  of  Lord  Holt  corres- 
ponds with  that  of  Brian,  C.  J.,  in  tJie  cases  already  cited  in  20 
Ed.  IV.  Martin,  B.,  in  the  court  below,  says  that  he  thinks  this 
was  a  case  without  difficulty,  because  the  defendant  had,  by  letting 
judgment  go  by  default,  admitted  his  liability  to  repair  the  wall. 
and  that  he  cannot  see  how  it  is  an  authority  for  any  case  in 
which  no  such  liability  is  admitted.  But  a  perusal  of  the  report 
will  show  that  it  was  because  Lord  Holt  and  his  colleagues  thought 
(no  matter  for  this  purpose  whether  rightly  or  wrongly)  that  the 
liability  was  not  admitted,  that  they  took  so  much  trouble  to  con- 
sider what  liability  the  law  would  raise  from  the  admitted  facts, 
and  it  does  therefore  seem  to  us  to  be  a  very  weighty  authority  in 
support  of  the  position  tfiat  he  who  brings  and  keeps  anything,  no 
matter  whether  beasts,  or  filth,  or  clean  water,  or  a  heap  of  earth 
or  dung,  on  his  premises,  must  at  his  peril  prevent  it  from  getting 
on  his  neighbour's,  or  make  good  all  the  damage  which  is  the 
natural  consequence  of  its  doing  so.  No  case  has  been  found  in 
which  the  question  as  to  the  liability  for  noxious  vapours  escaping 
from  a  man's  works  by  inevitable  accident  has  been  discussed,  but 
the  following  case  will  illustrate  it.  Some  years  ago  several  actions 
were  brought  against  the  occupiers  of  some  alkali  works  at  Liver- 
pool for  the  damage  alleged  to  be  caused  by  the  chlorine  fumes  of 
their  works.  The  defendants  proved  that  they  at  great  expense 
erected  contrivances  by  which  the  fumes  of  chlorine  were  con- 
densed, and  sold  as  muriatic  acid,  and  they  called  a  great  body  of 
scientific  evidence  to  prove  that  this  apparatus  was  so  perfect  that 
no  fumes  possibly  could  escape  from  the  defendants'  chimneys.  On 
this  evidence  it  was  pressed  upon  the  jury  that  the  plaintiffs  dam- 
age must  have  been  due  to  some  of  the  numerous  other  chimneys 
in  the  neighbourhood  ;  the  jury,  however,  being  satisfied  that  the- 
mischief  was  occasioned  by  chlorine,  drew  the  conclusion  that  it 
had  escaped  from  the  defendants'  works  somehow,  and  in  each  case 


ACCIDENT.  255 


No.  5.  —  Fletcher  v.  Rylands. 


found  for  the  plaintiff.  No  attempt  was  made  to  disturb  these 
verdicts,  on  the  ground  that  the  defendants  had  taken  every  pre- 
caution which  prudence  or  skill  could  suggest  to  keep  those  fumes 
in,  and  that  they  could  not  be  responsible  unless  negligence  was 
shown  ;  yet,  if  the  law  be  as  laid  down  by  the  majority  of  the 
Court  of  Exchequer,  it  would  have  been  a  very  obvious  defence. 
If  it  had  been  raised,  the  answer  would  probably  have  been  that 
the  uniform  course  of  pleading  in  actions  on  such  nuisances  is  t<> 
say  that  the  defendant  caused  the  noisome  vapours  to  arise  on 
his  premises,  and  suffered  them  to  come  on  the  plaintiff's,  without 
stating  there  was  any  want  of  care  or  skill  in  the  defendant,  and 
that  the  case  of  Tenant  v.  Goldwin,  1  Salk.  21,  360;  2  Ld.  Raym. 
1089;  6  Mod.  311,  showed  that  this  was  founded  on  the  general 
rule  of  law,  that  he  whose  stuff  it  is  must  keep  it  that  it  may  not 
trespass.  There  is  no  difference  in  this  respect  between  chlorine 
and  water  ;  both  will,  if  they  escape,  do  damage,  the  one  by  scorch- 
ing, and  the  other  by  drowning,  and  he  who  brings  them  there 
must  at  his  peril  see  that  they  do  not  escape  and  do  that  mischief. 
What  is  said  by  Gibbs,  C.  J.,  in  Sutton,  v.  Clarke,  6  Taunt,  at  p.  44, 
though  not  necessary  for  the  decision  of  the  case,  shows  that  that 
very  learned  judge  took  the  same  view  of  the  law  that  was  taken 
by  Lord  Holt.  But  it  was  further  said  by  Martin,  B.,  that  when 
damage  is  done  to  personal  property,  or  even  to  the  person,  by 
collision,  either  upon  land  or  at  sea,  there  must  be  negligence  in 
the  party  doing  the  damage  to  render  him  legally  responsible ;  and 
this  is  no  doubt  true,  and  as  was  pointed  out  by  Mr.  Mellish  dur- 
ing his  argument  before  us,  this  is  not  confined  to  cases  of  collision, 
for  there  are  many  cases  in  which  proof  of  negligence  is  essential, 
as,  for  instance,  where  an  unruly  horse  gets  on  the  footpath  of  a 
public  street  and  kills  a  passenger.  Hammack  v.  WJiite,  11  C.  B. 
(n.  s.)  588,  31  L.  J.  (C.  P.)  129  ;  or  where  a  person  in  a  dock  is 
struck  by  the  falling  of  a  bale  of  cotton  which  the  defendant's  ser- 
vants are  lowering,  Scott  v.  London,  Dock  Co.,  3  H.  &  C.  596;  34 
L  J.  (Ex.)  17,  220 ;  and  many  other  similar  cases  may  be  found. 
But  we  think  these  cases  distinguishable  from  the  present.  Traffic 
on  the  highways,  whether  by  laud  or  sea,  cannot  be  conducted 
without  exposing  those  whose  persons  or  property  are  near  it  to 
some  inevitable  risk  ;  and  that  being  so,  those  who  go  on  the  high- 
way, or  have  their  property  adjacent  to  it,  may  well  be  held  to  do 
so  subject  to  their  taking  upon  themselves  the  risk  of  injury  from 


256  ACCIDENT. 


No.  5.  —  Fletcher  v.  Rylands. 


that  inevitable  danger;  and  persons  who  by  the  license  of  the 
owner  pass  near  to  warehouses  where  goods  are  being  raised  or 
lowered,  certainly  do  so  subject  to  the  inevitable  risk  of  accident. 
In  neither  case,  therefore,  can  they  recover  without  proof  of  want 
of  care  or  skill  occasioning  the  accident ;  and  it  is  believed  that  all 
the  cases  in  which  inevitable  accident  has  been  held  an  excuse  for 
what  primd  facie  was  a  trespass,  can  be  explained  on  the  same 
principle,  viz.,  that  the  circumstances  were  such  as  to  show  that 
the  plaintiff  had  taken  that  risk  upon  himself.  But  there  is  no 
ground  for  saying  that  the  plaintiff  here  took  upon  himself  any 
risk  arising  from  the  uses  to  which  the  defendants  should  choose 
to  apply  their  land.  He  neither  knew  what  these  might  be,  nor 
could  he  in  any  way  control  the  defendants,  or  hinder  their  build- 
ing what  reservoirs  they  liked,  and  storing  up  in  them  what  water 
they  pleased,  so  long  as  the  defendants  succeeded  in  preventing  the 
water  which  they  there  brought  from  interfering  with  the  plain- 
tiffs property. 

The  view  which  we  take  of  the  first  point  renders  it  unnecessary 
to  consider  whether  the  defendants  would  or  would  not  be  respon- 
sible for  the  want  of  care  and  skill  in  the  persons  employed  by 
them,  under  the  circumstances  stated  in  the  case  [p.  237]. 

We  are  of  opinion  that  the  plaintiff  is  entitled  to  recover,  but  as 
we  have  not  heard  any  argument  as  to  the  amount,  we  are  not  able 
to  give  judgment  for  what  damages.  The  parties  probably  will 
empower  their  counsel  to  agree  on  the  amount  of  damages;  should 
they  differ  on  the  principle,  the  case  may  be  mentioned  again.1 

Judgment  for  the  plaintiff. 

Against  this  judgment  of  the  Exchequer  Chamber  a  proceeding 
in  error  was  brought  into  the  House  of  Lords.  The  plaintiff's  in 
error  in  this  last  proceeding  (who  are  here,  for  convenience,  called 
the  appellants)  were  the  original  defendants  in  the  action,  and 
were  also  the  defendants  in  error  in  the  proceedings  in  the  Ex- 
chequer Chamber.  The  arguments  and  authorities  for  the  appel- 
lants, so  far  as  not  repeating  those  insisted  on  in  the  court  below, 
may  be  summed  up  as  follows :  The  judgment  of  the  Exchequer 
Chamber  goes  to  this,  that  a  man  using  his  lawful  rights  without 
malice  and  without  knowledge  of  danger,  may  still  be  liable  for 

1  On  a  subsequent  day  (Juue  18),  Manisty,  Q.  ('.,  stated  to  the  court  that  the 
damages  had  been  agreed  at  £937. 


ACCIDENT.  257 


No.  5.  —  Fletcher  v.  Rylands. 


any  mischief  occurring  from  such  use,  is  too  wide.  Knowledge  of 
possible  mischief  is  of  the  essence  of  the  liability  incurred  by 
occasioning  it.  Acton  v.  Blundell  (1844),  12  M.  &  W.  324 ;  13  L.  J. 
Exch.  289  ;  Chasemorc  v.  Richards  (1850),  7  H.  L.  C.  349  ;  29  L.J. 
Exch.  81.  This  principle  has  been  adopted  from  us,  by  the  courts 
in  America.  Pixley  v.  Clark,  32  Barbour's  Eep.  (New  York).  The 
defendants  employed  competent  persons  to  do  something  which  was, 
in  itself,  perfectly  lawful,  and  they  cannot  be  held  liable  in  damages 
without  clear  evidence  of  impropriety  or  negligence  on  their  own 
parts.  The  person  who  does  the  work  is  alone  liable.  Butler  v. 
Hunter  (1862),  31  L.  J.  (Ex.)  214 ;  7  H.  &  N.  826  ;  Peachey  v.  Bow- 
land  (1853),  13  C.  B.  182  ;  22  L.  J.  C.  P.  81 ;  Allen  v.  Hayward 
(1845),  7  Q.  B.  960  ;  15  L.  J.  Q.  B.  99.  The  respondents,  in  addition 
to  the  authorities  relied  on  in  the  court  below,  cited  Bonomi  v. 
Bacl-huuse  (1858,  1850,  1862),  E.  B.  &  E.  622,  646  ;  9  H.  I,  C.  503  ; 
34  L.  J.  Q.  B.  181 ;  Bamford  v.  Turnley  (1860),  3  B.  &  S.  62;  31 
L.  J.  Q.  B.  286 ;  Tipping  v.  St.  Helen's  Smelting  Co.  (1863,  1865), 
4  B.  &  S.  608 ;  11  H.  L.  C.  642 ;  35  L.  J.  Q,  B.  66. 

The  Lord  Chancellor  (Lord  Cairns).  My  Lords,  in  this  case 
the  plaintiff  (I  may  use  the  description  of  the  parties  in  the  action) 
is  the  occupier  of  a  mine  and  works  under  a  close  of  land.  The 
defendants  are  the  owners  of  a  mill  in  his  neighbourhood,  and 
they  proposed  to  make  a  reservoir  for  the  purpose  of  keeping  and 
storing  water  to  be  used  about  their  mill  upon  another  close  of 
land,  which,  for  the  purposes  of  this  case,  may  be  taken  as  being 
adjoining  to  the  close  of  the  plaintiff,  although,  in  point  of  fact, 
some  intervening  land  lay  between  the  two.  Underneath  the  close 
of  land  of  the  defendants  on  which  they  proposed  to  construct 
their  reservoir  there  were  certain  old  and  disused  mining  passages 
and  works.  There  were  five  vertical  shafts,  and  some  horizontal 
shafts  communicating  with  them.  The  vertical  shafts  had  been 
filled  up  with  soil  and  rubbish,  and  it  does  not  appear  that  any 
person  was  aware  of  the  existence  either  of  the  vertical  shafts  or 
of  the  horizontal  works  communicating  with  them.  In  the  course 
of  the  working  by  the  plaintiff  of  his  mine,  he  had  gradually 
worked  through  the  seams  of  coal  underneath  the  close,  and  had 
come  into  contact  with  the  old  and  disused  works  underneath  the 
close  of  the  defendants. 

In  that  state  of  things  the  reservoir  of  the  defendants  was  con- 
structed. It  was  constructed  by  them  through  the  agency  and 
VOL.  i.  —  17 


258  ACCIDENT. 


No.  5.  —  Fletcher  v.  Rylands. 


inspection  of  an  engineer  and  contractor.  Personally,  the  defend- 
ants appear  to  have  taken  no  part  in  the  works,  or  to  have  been 
aware  of  any  want  of  security  connected  with  them.  As  regards 
the  engineer  and  the  contractor,  we  must  take  it  from  the  case 
that  they  did  not  exercise,  as  far  as  they  were  concerned,  that 
reasonable  care  and  caution  which  they  might  have  exercised, 
taking  notice,  as  they  appear  to  have  taken  notice,  of  the  vertical 
shafts  filled  up  in  the  manner  which  I  have  mentioned.  How- 
ever, my  Lords,  when  the  reservoir  was  constructed,  and  filled,  or 
partly  filled,  with  water,  the  weight  of  the  water  bearing  upon  the 
disused  and  imperfectly  filled-up  vertical  shafts,  broke  through 
those  shafts.  The  water  passed  down  them  and  into  the  horizon- 
tal workings,  and  from  the  horizontal  workings  under  the  close  of 
the  defendants,  it  passed  on  into  the  workings  under  the  close  of 
the  plaintiff,  and  Hooded  his  mine,  causing  considerable  damage, 
for  which  this  action  was  brought. 

The  Court  of  Exchequer,  when  the  special  case  stating  the 
facts  to  which  I  have  referred  was  argued,  was  of  opinion  that 
the  plaintiff  had  established  no  cause  of  action.  The  Court  of 
Exchequer  Chamber,  before  which  an  appeal  from  this  judgment 
was  argued,  was  of  a  contrary  opinion,  and  the  judges  there  unani- 
mously arrived  at  the  conclusion  that  there  was  a  cause  of  action, 
and  that  the  plaintiff  was  entitled  to  damages. 

My  Lords,  the  principles  on  which  this  case  must  be  determined 
appear  to  me  to  be  extremely  simple.  The  defendants,  treating 
them  as  the  owners  or  occupiers  of  the  close  on  which  the  reser- 
voir was  constructed,  might  lawfully  have  used  that  close  for  any 
purpose  for  which  it  might  in  the  ordinary  course  of  the  enjoyment 
of  land  be  used  ;  and  if,  in  what  I  may  term  the  natural  user  of 
that  land,  there  had  been  any  accumulation  of  water  either  on  the 
surface  or  underground,  and  if  by  the  operation  of  the  laws  of 
nature  that  accumulation  of  water  had  passed  off  into  the  close 
occupied  by  the  plaintiff,  the  plaintiff  could  not  have  complained 
that  that  result  had  taken  place.  If  he  had  desired  to  guard 
himself  against  it,  it  would  have  lain  upon  him  to  have  done  so 
by  leaving  or  by  interposing  some  barrier  between  his  close  and 
the  close  of  the  defendants  in  order  to  have  prevented  that  opera- 
tion of  the  laws  of  nature. 

As  an  illustration  of  that  principle,  I  may  refer  to  a  case  which 
was  cited  in  the  argument  before  your  Lordships,  —  the  case  of 
Smith  v.  Kenrick  in  the  Court  of  Common  Pleas,  7  C.  B.  515. 


ACCIDENT.  .  251> 


No.  5.  —  Fletcher  v.  Rylands. 


On  the  other  hand,  if  the  defendants,  not  stopping  at  the 
natural  use  of  their  close,  had  desired  to  use  it  for  any  purpose 
which  T  may  term  a  non-natural  use,  for  the  purpose  of  intro- 
ducing into  the  close  that  which  in  its  natural  condition  was  not 
in  or  upon  it,  for  the  purpose  of  introducing  water  either  ahove  or 
below  ground  in  quantities  and  in  a  manner  not  the  result  of  any 
work  or  operation  on  or  under  the  land,  and  if  in  consequence  of 
their  doing  so,  or  in  consequence  of  any  imperfection  in  the  mode 
of  their  doing  so,  the  water  came  to  escape  and  to  pass  off  into 
the  close  of  the  plaintiff,  then  it  appears  to  me  that  that  which  the 
defendants  were  doing  they  were  doing  at  their  own  peril ;  and 
if  in  the  course  of  their  doing  it  the  evil  arose  to  which  I  have 
referred,  —  the  evil,  namely,  of  the  escape  of  the  water  and  its 
passing  away  to  the  close  of  the  plaintiff  and  injuring  the  plain- 
tiff, —  then  for  the  consequence  of  that,  in  my  opinion,  the 
defendants  would  be  liable.  As  the  case  of  Smith  v.  Kenrick  is 
an  illustration  of  the  first  principle  to  which  I  have  referred,  so 
also  the  second  principle  to  which  I  have  referred  is  well  illus- 
trated by  another  case  in  the  same  court,  —  the  case  of  Baird  v. 
Williamson,  15  0.  B.  (x.  s.)  317,  which  was  also  cited  in  the  argu- 
ment at  the  bar. 

My  Lords,  these  simple  principles,  if  they  are  well  founded,  as 
it  appears  to  me  they  are,  really  dispose  of  this  case. 

The  same  result  is  arrived  at  on  the  principles  referred  to  by 
Mr.  Justice  Blackburn  in  his  judgment  in  the  court  of  Exchequer 
Chamber,  where  he  states  the  opinion  of  that  court  as  to  the  law 
in  these  words  :  "  We  think  that  the  true  rule  of  law  is,  that  the 
person  who  for  his  own  purposes  brings  on  his  land  and  collects 
and  keeps  there  anything  likely  to  do  mischief  if  it  escapes,  must 
keep  it  in  at  his  peril;  and  if  he  does  not  do  so,  is  'prima  facie 
answerable  for  all  the  damage  which  is  the  natural  consequence  of 
its  escape.  He  can  excuse  himself  by  showing  that  the  escape  was 
owing  to  the  plaintiff's  default;  or,  perhaps,  that  the  escape  was  the 
consequence  of  vis  major,  or  the  act  of  God;  but  as  nothing  of  this 
sort  exists  here,  it  is  unnecessary  to  inquire  what  excuse  would  be 
sufficient.  The  general  rule,  as  above  stated,  seems  on  principle 
just.  The  person  whose  grass  or  corn  is  eaten  down  by  the 
escaping  cattle  of  his  neighbour,  or  whose  mine  is  flooded  by  the 
water  from  his  neighbour's  reservoir,  or  whose  cellar  is  invaded 
by  the  filth  of  his  neighbour's  privy,  or  whose  habitation  is  made 


260  -  ACCIDENT. 


No.  5.  —  Fletcher  v.  Rylands. 


unhealthy  by  the  fumes  and  noisome  vapours  of  his  neighbour's 
alkali  works,  is  damnified  without  any  fault  of  his  own  ;  and  it 
seems  but  reasonable  and  just  that  the  neighbour  who  has  brought 
something  on  his  own  property  (which  was  not  naturally  there), 
harmless  to  others  so  long  as  it  is  confined  to  his  own  property, 
but  which  he  knows  will  be  mischievous  if  it  gets  on  his  neigh- 
bour's, should  be  obliged  to  make  good  the  damage  which  ensues 
if  he  does  not  succeed  in  confining  it  to  his  own  property.  But 
for  his  act  in  bringing  it  there  no  mischief  could  have  accrued  ; 
and  it  seems  but  just  that  he  should  at  his  peril  keep  it  there, 
so  that  no  mischief  may  accrue,  or  answer  for  the  natural  and 
anticipated  consequence.  And  upon  authority  this  we  think  is 
established  to  be  the  law,  whether  the  things  so  brought  be  beasts, 
or  water,  or  filth,  or  stenches." 

My  Lords,  in  that  opinion  I  must  say  I  entirely  concur.  There- 
fore, I  have  to  move  your  Lordships  that  the  judgment  of  the 
Court  of  Exchequer  Chamber  be  affirmed,  and  that  the  present 
appeal  be  dismissed  with  costs. 

Lord  Cranworth.  My  Lords,  I  concur  with  my  noble  and 
learned  friend  in  thinking  that  the  rule  of  law  was  correctly  stated 
by  Mr.  Justice  Blackburn  in  delivering  the  opinion  of  the  Exchequer 
Chamber.  If  a  person  brings  or  accumulates  on  his  land  anything 
which,  if  it  should  escape,  may  cause  damage  to  his  neighbour,  he 
does  so  at  his  peril.  If  it  does  escape,  and  cause  damage,  he  is 
responsible,  however  careful  he  may  have  been,  and  whatever  pre- 
cautions he  may  have  taken  to  prevent  the  damage. 

In  considering  whether  a  defendant  is  liable  to  a  plaintiff  for 
damage  which  the  plaintiff  may  have  sustained,  the  question  in 
rreneral  is  not  whether  the  defendant  has  acted  with  due  care  and 
caution,  but  whether  his  acts  have  occasioned  the  damage.  This 
is  all  well  explained  in  the  old  case  of  Lambert  v.  Bessey,  reported 
by  Sir  Thomas  Raymond  (Sir  T.  Raym.  421).  And  the  doctrine  is 
founded  on  good  sense.  For  when  one  person,  in  managing  his 
own  affairs,  causes,  however  innocently,  damage  to  another,  it  is 
obviously  only  just  that  he  should  be  the  party  to  suffer.  He  is 
bound  sic  uti  suo  ut  non  Imdat  alienum.  This  is  the  principle  of 
law  applicable  to  cases  like  the  present,  and  I  do  not  discover  in 
the  authorities  which  were  cited  anything  conflicting  with  it. 

The  doctrine  appears  to  me  to  be  well  illustrated  by  the  two  mod- 
ern cases  in  the  Court  of  Common  Pleas  referred  to  by  my  noble 


ACCIDENT.  261 


No.  5.  —  Fletcher  v.  Rylands. 


and  learned  friend.  I  allude  to  the  two  cases  of  Smith  v.  Kenrick, 
7  C.  B.  564,  and  Baird  v.  Williamson,  15  C.  B.  (x.  s.)  376.     In  the 

former  the  owner  of  a  coal  mine  on  the  higher  level  worked  out 
the  whole  of  his  coal,  leaving  no  barrier  between  his  mine  and  the 
mine  on  the  lower  level,  so  that  the  water  percolating  through  the 
upper  mine  ilowed  into  the  lower  mine,  and  obstructed  the  owner 
of  it  in  getting  his  coal.  It  was  held  that  the  owner  of  the  lower 
mine  had  no  ground  of  complaint.  The  defendant,  the  owner  of 
the  upper  mine,  had  a  right  to  remove  all  his  coal.  The  damage 
sustained  by  the  plaintiff  was  occasioned  by  the  natural  flow  or 
percolation  of  water  from  the  upper  strata.  There  was  no  obliga- 
tion on  the  defendant  to  protect  the  plaintiff  against  this.  It 
was  his  business  to  erect  or  leave  a  sufficient  barrier  to  keep 
out  the  water,  or  to  adopt  proper  means  for  so  conducting  the 
water  as  that  it  should  not  impede  him  in  his  workings.  The 
water,  in  that  case,  was  only  left  by  the  defendant  to  flow  in  its 
natural  course. 

But  in  the  later  case  of  Baird  v.  Williamson  the  defendant, 
the  owner  of  the  upper  mine  did  not  merely  suffer  the  water  to 
flow  through  his  mine  without  leaving  a  barrier  between  it  and 
the  mine  below,  but  in  order  to  work  his  own  mine  beneficially  he 
pumped  up  quantities  of  water  which  passed  into  the  plaintiff's 
mine  in  addition  to  that  which  would  have  naturally  reached  it, 
and  so  occasioned  him  damage.  Though  this  was  done  without 
negligence,  and  in  the  due  working  of  his  own  mine,  yet  he  was 
held  to  be  responsible  for  the  damage  so  occasioned.  It  was  in 
consequence  of  his  act,  whether  skilfully  or  unskilfully  performed, 
that  the  plaintiff  had  been  damaged,  and  he  was  therefore  held 
liable  for  the  consequences.  The  damage  in  the  former  case  may 
be  treated  as  having  arisen  from  the  act  of  God  ;  in  the  latter, 
from  the  act  of  the  defendant. 

Applying  the  principle  of  these  decisions  to  the  case  now  before 
the  House,  I  come  without  hesitation  to  the  conclusion  that  the 
judgment  of  the  Exchequer  Chamber  was  right.  The  plaintiff 
had  a  right  to  work  his  coal  through  the  lands  of  Mr.  Whitehead, 
and  up  to  the  old  workings.  If  water  naturally  rising  in  the 
defendants'  land  (we  may  treat  the  land  as  the  land  of  the  defend- 
ants for  the  purpose  of  this  case)  had  by  percolation  found  its 
way  down  to  the  plaintiff's  mine  through  the  old  workings,  and 
so  had  impeded  his  operations,  that  would  not  have   afforded  him 


262  ACCIDENT. 


No.  6.  —  Nichols  v.  Marsland. 


any  ground  of  complaint.  Even  if  all  the  old  workings  had  been 
made  by  the  plaintiff,  he  would  have  done  no  more  than  he  was 
entitled  to  do  ;  for,  according  to  the  principle  acted  on-  in  Smith  v. 
Kenrick,  the  person  working  the  mine  under  the  close  in  which 
the  reservoir  was  made  had  a  right  to  win  and  carry  away  all  the 
coal  without  leaving  any  wall  or  barrier  against  Whitehead's  land. 
But  that  is  not  the  real  state  of  the  case.  The  defendants,  in  order 
to  effect  an  object  of  their  own,  brought  on  to  their  land,  or  on  to 
land  which  for  this  purpose  may  be  treated  as  being  theirs,  a  large 
accumulated  mass  of  water,  and  stored  it  up  in  a  reservoir.  The 
consequence  of  this  was  damage  to  the  plaintiff;  and  for  that 
damage,  however  skilfully  and  carefully  the  accumulation  was 
made,  the  defendants,  according  to  the  principles  and  authorities 
to  which  I  have  adverted,  were  certainly  responsible. 

I  concur,  therefore,  with  my  noble  and  learned  friend  in  think- 
ing that  the  judgment  below  must  be  affirmed,  and  that  there 
must  be  judgment  for  the  defendant  in  error. 

Judgment  of  the  Court  of  Exchequer  Chamber  a  firmed. 

Nichols  v.  Marsland. 

2  Ex.  D.  1  (s.  C.  46  L.  J.  Ex.  174;  35  L.  T.  174  ;  25  VV.  R.  173). 

Appeal  from  a  judgment  of  the  Court  of  Exchequer  (Kelly, 
C.  B.,  Bramwell  and  Cleasby,  BB.),  making  absolute  a  rule  tu  enter 
the  verdict  for  the  defendant.  The  facts  are  fully  set  out  in  the 
report  of  the  case  in  the  court  below,  Law  Rep.,  10  Ex.  255.  For 
the  present  purpose  they  are  sufficiently  stated  in  the  judgment. 

June  13,  14.  Cotton,  Q.  C.  (Mclntyre,  Q.  C,  and  Coxon,  with 
him),  for  the  plaintiff,  appellant.  Assuming  the  jury  to  be  right 
in  finding  that  the  defendant  was  not  guilty  of  negligence,  and 
that  the  rainfall  amounted  to  vis  major,  or  the  act  of  God,  still  the 
defendant  is  liable,  because  she  has,  without  necessity,  and  volun- 
tarily for  her  own  pleasure,  stored  on  her  premises  an  element 
which  was  liable  to  be  let  loose,  and  which,  if  let  loose,  would  be 
dangerous  to  her  neighbours.  One  who  keeps  a  mischievous  ani- 
mal, with  knowledge  of  its  propensities,  is  bound  to  keep  it  secure 
at  his  peril,  and  if  he  does  not,  is  liable  for  the  damage  caused, 
though  innocent  of  negligence.  May  v.  Burdett,  9  Q.  B.  101,  112; 
1G  L.  J.  (Q.  B.)  64,  67.  The  House  of  Lords  has  decided  that 
water  is  in  the  same  category.     Rylands  v.  Fletcher,  Law  Rep.,  1 


ACCIDENT.  2G3 


No.  6.  —  Nichols  v.  Marsland. 


Ex.  2G5,  279;  affirmed  Law  Eep.,  3  H.  L.  330,  339,  340.  So, 
though  a  railway  company,  when  authorized  by  statute  to  use 
locomotives,  is  not  liable  for  the  damage  done  by  sparks  of  fire,  if 
they  have  taken  all  reasonable  precautions,  and  are  not  guilty  of 
negligence,  Vaughan  v.  Taff  Vale  By.  Co.,  5  H.  &  X.  679;  29 
L.  J.  (Ex.)  247,  yet  they  are  liable  when  not  expressly  authorized 
by  statute.  Jones  v.  Festiniog  By.  Co.,  Law  Rep.,  3  Q.  B.  733. 
These  authorities  were  all  discussed  in  Madras  lit).  Co.  v.  Zemin- 
dar of  Carvatcaaija i'ii in,  Law  Rep.,  1  Ind.  App.  3G4,  385,  where 
the  defendant  was  held  not  liable  on  the  ground  that  it  was  his 
duty  to  maintain  the  reservoirs  on  his  premises.  The  present 
defendant  was  under  no  such  duty.  Even  if  she  be  considered 
innocent  of  wrong-doing,  why  should  the  plaintiff  suffer  for  the 
defendant's  voluntary  act  of  turning  an  otherwise  harmless  stream 
into  a  source  of  danger  ?  But  for  the  defendant's  embankments, 
the  excessive  rainfall  would  have  escaped  without  doing  injury. 
The  fact  of  the  embankments  being  so  high  caused  the  damage. 
They  ought  to  have  been  much  higher  or  less,  or  the  weirs  ought 
to  have  been  much  larger  and  kept  in  order.  Even  if  vis  major 
does  excuse  from  liability,  the  vis  major  must  be  the  sole  cause  of 
the  damage,  which  it  was  not  here.  Such  a  storm  as  this  occurs 
periodically,  and  may  be  foreseen,  and  is  therefore  not  the  act  of 
God,  or  vis  major,  in  the  sense  that  it  excuses  from  liability. 

Gorst,  Q.  C,  and  Hughes  (Dunn  with  them),  for  the  defendant, 
cited  Car  stairs  v.  Taylor,  Law  Eep.,  6  Ex.  217;  McCoy  v.  Danbcy, 
20  Penn.  St.  R.  85  ;  Tennent  v.  Earl  of  Glasgoiv,  1  Court  of  Ses- 
sion Cases,  3rd  series,  133.  Cur.  adv.  vult. 

Dec.  1.  The  judgment  of  the  court  (Cockburn,  C.  J.,  James, 
and  Mellish,  L.JJ.,  and  Baggallay,  J.  A.), l  was  read  by 

Mellish,  L.  J.  This  was  an  action  brought  by  the  county  sur- 
veyor under  43  Geo.  III.  c,  59,  §  4,  of  the  county  of  Chester  against 
the  defendant  to  recover  damages  on  account  of  the  destruction  of 
four  county  bridges  which  had  been  carried  away  by  the  bursting 
of  some  reservoirs.  At  the  trial  before  Cockburn,  C.  J.,  it  ap- 
peared that  the  defendant  was  the  owner  of  a  series  of  artificial 
ornamental  lakes,  which  had  existed  for  a  great  number  of  years, 
and  had  never  previous  to  the  18th  day  of  June,  1872,  caused  any 

1  Archibald,  J.,  who  was  a  member  of  the  court  when  the  case  was  argued,  died 
before  judgment  was  delivered. 


264  ACCIDENT. 


No.  6.  —  Nichols  v.  Marsland. 


damage.  On  that  day,  however,  after  a  most  unusual  fall  of  rain, 
the  lakes  overflowed,  the  dams  at  their  end  gave  way,  and  the 
water  out  of  the  lakes  carried  away  the  county  bridges  lower 
down  the  stream.  The  jury  found  that  there  was  no  negligence 
either  in  the  construction  or  the  maintenance  of  the  reservoirs, 
but  that  if  the  flood  could  have  been  anticipated,  the  effect  might 
have  been  prevented.1  Upon  this  finding,  the  Lord  Chief  Justice, 
acting  on  the  decision  in  Hi/lands  v.  Fletcher,  Law  Rep.,  3  H.  L. 
330,  as  the  nearest  authority  applicable  to  the  case,  directed  a 
verdict  for  the  plaintiff,  but  gave  leave  to  move  to  enter  a  verdict 
for  the  defendant.  The  Court  of  Exchequer  have  ordered  the 
verdict  to  be  entered  for  the  defendant,  and  from  their  decision  an 
appeal  has  been  brought  before  us. 

The  appellant  relied  upon  the  decision  in  the  case  of  Rylands  v. 
Fletcher,  Law  Rep.,  3  H.  L.  330.  In  that  case  the  rule  of  law  on 
which  the  case  was  decided  was  thus  laid  down  by  Mr.  Justice 
Blackburn  in  the  Exchequer  Chamber,  Law  Rep.,  1  Ex.  at  p.  279 : 
"  We  think  the  true  rule  of  law  is  that  the  person  who  for  his 
own  purposes  brings  on  his  lands  and  collects  and  keeps  there 
anything  likely  to  do  mischief  if  it  escapes,  must  keep  it  at  his 
peril,  and  if  he  does  not  do  so,  is  primd  facie  answerable  for  all 
the  damage  which  is  the  natural  consequence  of  its  escape.  He 
can  excuse  himself  by  showing  that  the  escape  was  owing  to  the 
plaintiff's  default ;  or  perhaps  that  the  escape  was  the  consequence 
of  vis  major,  or  the  act  of  God ;  but  as  nothing  of  the  sort  exists 
here  it  is  unnecessary  to  inquire  what  excuse  would  be  sufficient." 
It  appears  to  us  that  we  have  two  questions  to  consider :  First, 
the  question  of  law,  which  was  left  undecided  in  Rylands  v. 
Fletcher,  Law  Rep.,  3  H.  L.  330,  can  the  defendant  excuse  herself 
by  showing  that  the  escape  of  the  water  was  owing  to  vis  major, 
or,  as  it  is  termed  in  the  law  books,  the  "act  of  God"?  And, 
secondly,  if  she  can,  did  she  in  fact  make  out  that  the  escape  was 
so  occasioned  ? 

Now,  with  respect  to  the  first  question,  the  ordinary  rule  of  law 
is,  that  when  the  law  creates  a  duty,  and  the  party  is  disabled 
from  performing  it  without  any  default  of  his  own,  by  the  act  of 

1  The  judgment  of  the  court   below,  banks  were  fit  for  all  events  to  be  antici- 

read  by  Bramwell,  B.,  states  the  finding  patcd,  and  the  weirs  broad  enough;  that 

thus :  "  In  this  case  I  understand  the  jury  the  storm  was  of  such  violence  as  to  be 

to  have  found   that   all   reasonable   care  properly   called    the   act   of    God,  or   vis 

had  been  taken  by  the  defendant,  that  the  major." 


ACCIDENT.  265 


No.  6.  —  Nichols  v.  Marsland. 


God,  or  the  King's  enemies,  the  law  will  excuse  him  ;  but  when  a 
party  by  his  own  contract  creates  a  duty,  he  is  bound  to  make  it 
good  notwithstanding  any  accident  by  inevitable  necessity.  We 
can  see  no  good  reason  why  that  rule  should  not  be  applied  to  the 
case  before  us.  The  duty  of  keeping  the  water  in  and  preventing 
its  escape  is  a  duty  imposed  by  the  law  and  not  one  created  by 
contract.  If,  indeed,  the  making  a  reservoir  was  a  wrongful  act 
in  itself,  it  might  be  right  to  hold  that  a  person  could  not  escape 
from  the  consequences  of  his  own  wrongful  act.  But  it  seems  to 
us  absurd  to  hold  that  the  making  or  the  keeping  a  reservoir  is  a 
wrongful  act  in  itself.  The  wrongful  act  is  not  the  making  or 
keeping  the  reservoir,  but  the  allowing  or  causing  the  water  to 
escape.  If,  indeed,  the  damages  were  occasioned  by  the  act  of 
the  party  without  more  —  as  where  a  man  accumulates  water  on 
his  own  land,  but,  owing  to  the  peculiar  nature  or  condition  of  the 
soil,  the  water  escapes  and  does  damage  to  his  neighbour  —  the 
case  of  Rylands  v.  Fletcher,  Law  Eep.,  3  H.  L.  330,  establishes  that 
he  must  be  held  liable.  The  accumulation  of  water  in  a  reservoir 
is  not  in  itself  wrongful ;  but  the  making  it  and  suffering  the 
water  to  escape,  if  damage  ensue,  constitute  a  wrong.  But  the 
present  case  is  distinguished  from  that  of  Rylands  v.  Fletcher, 
Law  Eep.,  3  H.  L.  330,  in  this,  that  it  is  not  the  act  of  the  defend- 
ant in  keeping  this  reservoir,  an  act  in  itself  lawful,  which  alone 
leads  to  the  escape  of  the  water,  and  so  renders  wrongful  that 
wdiich  but  for  such  escape  would  have  been  lawful.  It  is  the 
supervening  vis  major  of  the  water  caused  by  the  flood,  which, 
superadded  to  the  water  in  the  reservoir  (which  of  itself  would 
have  been  innocuous),  causes  the  disaster.  A  defendant  cannot, 
in  our  opinion,  be  properly  said  to  have  caused  or  allowed  the 
water  to  escape,  if  the  act  of  God  or  the  Queen's  enemies  was  the 
real  cause  of  its  escaping  without  any  fault  on  the  part  of  the  de- 
fendant. If  a  reservoir  was  destroyed  by  an  earthquake,  or  the 
Queen's  enemies  destroyed  it  in  conducting  some  warlike  opera- 
tion, it  would  be  contrary  to  all  reason  and  justice  to  hold  the 
owner  of  the  reservoir  liable  for  any  damage  that  might  be  done 
by  the  escape  of  the  water.  We  are  of  opinion,  therefore,  that  the 
defendant  was  entitled  to  excuse  herself  by  proving  that  the 
water  escaped  through  the  act  of  God. 

The  remaining  question  is,  did  the  defendant  make  out  that  the 
escape  of  the  water  was  owing  to  the  act  of  God  ?     Now  the  jury 


2GG  ACCIDENT. 


Nos.  5,  6.  —  Fletcher  v.  Rylands,  &/C.  —  Notes. 


have  distinctly  found,  not  only  that  there  was  no  negligence  in 
the  construction  or  the  maintenance  of  the  reservoirs,  but  that  the 
flood  was  so  great  that  it  could  not  reasonably  have  been  antici- 
pated, although,  if  it  had  been  anticipated,  the  effect  might  have 
been  prevented ;  and  this  seems  to  us  in  substance  a  finding  that 
the  escape  of  the  water  was  owing  to  the  act  of  God.  However 
great  the  flood  had  been,  if  it  had  not  been  greater  than  floods 
that  had  happened  before  and  might  be  expected  to  occur  again, 
the  defendant  might  not  have  made  out  that  she  was  free  from 
fault ;  but  we  think  she  ought  not  to  be  held  liable  because  she 
did  not  prevent  the  effect  of  an  extraordinary  act  of  nature,  which 
she  could  not  anticipate.  In  the  late  case  of  Nugent  v.  Smith, 
1  C.  P.  D.  423,  we  held  that  a  carrier  might  be  protected  from 
liability  for  a  loss  occasioned  by  the  act  of  God,  if  the  loss  by  no 
reasonable  precaution  could  be  prevented,  although  it  was  not 
absolutely  impossible  to  prevent  it. 

It  was  indeed  ingeniously  argued  for  the  appellant  that  at  any 
rate  the  escape  of  the  water  was  not  owing  solely  to  the  act  of 
God,  because  the  weight  of  the  water  originally  in  the  reservoirs 
must  have  contributed  to  break  down  the  dams,  as  well  as  the 
extraordinary  water  brought  in  by  the  flood.  We  think,  however, 
that  the  extraordinary  quantity  of  water  brought  in  by  the  flood 
is  in  point  of  law  the  sole  proximate  cause  of  the  escape  of  the 
water.     It  is  the  last  drop  which  makes  the  cup  overflow. 

On  the  whole,  we  are  of  opinion  that  the  judgment  of  the 
Court  of  Exchequer  ought  to  be  affirmed. 

Judgment  affirmed.1 

ENGLISH    NOTES. 

The  decision  of  the  Court  of  Appeal  in  Nichols  v.  Marsland  adopts 
the  exception  of  the  act  of  God,  or  vis  major,  which  was  doubtfully 
admitted  as  a  possible  one,  in  Rylands  v.  Fletcher.  And,  so  far, 
the  cases  are  consistent.  But  the  judgment  of  the  Court  of  Appeal 
in  the  latter  case  suggests  the  further  question  whether  the  facts  in 
Fletcher  v.  Rylands  made  it  necessary  to  lay  down  the  rule  of  law  so 
broadly  as  was  done  by  Mr.  Justice  Blackburn  in  the  Exchequer 
Chamber.  And,  although  both  Lord  Cairns  and  Lord  Cranworth 
in  the  House  of  Lords  agree  in  expressing  their  concurrence  with  the 

1  The  question  whether  the  rule  should     evidence,   was   reserved    lor    future    dis- 
he  made  ahsolute  for  a  new  trial,  on  the     cussion,  if  the  plaintiff  should  desire  it. 
ground  that  the   verdict  was  against  the 


ACCIDENT.  267 


Nos.  5,  6.  —  Fletcher  v.  Rylands,  &oc.  —  Notes. 


rule  of  law  laid  down  by  Mr.  Justice  Blackburn,  it  does  not  follow 
that  this  rule  of  law  —  if  broader  than  was  necessary  for  the  decision 
of  the  actual  cast'  —  is  conclusively  to  be  taken  as  the  ratio  decidendi 
of  the  House. 

The  question  is:  What  is  the  duty,  and  what  are  the  liabilities,  of  a 
person  who,  without  statutory  authority,  stores  water  in  a  reservoir  for 
his  own  purposes.  — purposes  not  necessary  for  the  ordinary  cultivation 
of  his  land?  Of  various  answers  which  might  be  given,  the  choice 
appears  to  lie  between  the  three  following:  — 

1.  He  is  under  an  absolute  duty,  at  all  events,  to  restrain  the  water 
from  escaping  so  as  to  do  damage;  or, 

2.  He  is  bound  to  restrain  the  water  at  all  events  excepting  the  act 
of  God  or  of  the  Queen's  enemies;  or, 

3.  He  is  under  an  absolute  duty  to  provide  and  maintain  a  reservoir 
capable  of  holding  the  water  under  all  circumstances  reasonably  to  he 
expected;  but  if  he  has  done  this,  he  is  not  liable  for  vis  major,  or  for 
the  acts  of  other  persons  over  whom  he  has  no  control. 

The  first  answer  appears  to  be  the  rule  of  law  intended  to  be  laid 
down  in  the  judgments  pronounced  in  Fletcher  v.  Rylands.  And,  if 
the  analogy  of  a  person  harbouring  a  wild  beast  or  noxious  filth  is 
correctly  applied,  there  is  ample  authority  for  this  view  of  the  legal 
relation. 

The  second  answer  is  the  same  as  the  first,  modified  so  as  to  be  consis- 
tent with  the  decision  in  Nichols  v.  Marsland,  This  answer  would,  1 
think,  be  consistent  with  the  actual  decision  in  all  the  cases,  except 
that  of  the  Exchequer  Division  in  Box  v.  Jubb  (p.  270,  j)ost).  But,  if 
this  is  the  true  rule,  the  whole  reasoning  founded  on  the  analogy  of 
persons  harbouring  wild  beasts,  or  bringing  filth  on  their  premises,  be- 
comes questionable.  For  the  authorities  on  which  this  class  of  cases 
rests  hardly  appear  to  admit  of  the  exception  of  the  act  of  God. 

The  third  answer  adopts  the  supposed  rule  of  law,  and  the  analogy 
on  which  it  is  founded,  so  far  as  necessary  for  the  actual  decision  in 
Fletcher  v.  Rylands,  and  is  the  rule  which  the  Court  of  Appeal  seems 
to  favour  in  Nichols  v.  Marsland.  It  would  be  consistent  with  the 
actual  decision  in  all  the  cases,  including  Box  v.  Jubb.  If  this  answer 
is  correct,  the  analogy  of  a  dangerous  animal  would  only  hold  for  an 
improperly  constructed  reservoir;  and,  in  one  properly  constructed,  the 
water  would  be  regarded  as  mansuetae  naturae. 

Having  so  far  explained  the  rule,  it  seems  useful  to  cite  the  cases 
bearing  upon  it,  with  some  particularity  in  the  circumstances.  The 
order  of  date  will  be  followed,  except  so  far  as  may  be  convenient  for 
grouping  the  cases  of  similar  circumstances. 

William  AldrecVs  case,  cited  in  the  arguments  of  Fletcher  v.  Rylands 


268  ACCIDENT. 


Nos.  5,  6.  —  Fletcher  v.  Rylands,  &c.  —  Notes. 


in  the  Exchequer  Chamber,  was  a  case  in  the  King's  Bench,  7  James  I. 
(1609),  and  is  reported  in  9  Co.  Rep.  57  b.  It  was  there  decided  that 
an  action  on  the  case  lies  for  erecting  a  hog-stye  so  near  the  house  of 
the  plaintiff  that  the  air  thereof  was  corrupted.  And  (p.  59  a)  it  is 
said,  citing  a  case  from  the  Year  Books  (H.  VII.  26  1>.)  :  "  If  a  man  has 
a  watercourse  running  in  a  ditch  from  the  river  to  his  house,  for  his 
necessary  use;  if  a  glover  sets  up  a  lime-pit  for  calve-skins  and  sheep- 
skins so  near  the  said  water-course  that  the  corruption  of  the  lime-pit 
has  corrupted  it,  for  which  cause  his  tenants  leave  the  said  house,  an 
action  on  the  case  lies." 

Most  of  the  other  cases  cited  in  the  judgments  of  Fletcher  v.  fit/lands 
are  there  sufficiently  explained  without  requiring  further  comment. 

The  case  of  Jones  v.  Festlniog  By.  Co.  (1868),  L.  R.,  3  Q.  B.  733; 
37  L.  J.  Q.  B.  214,  was  decided  by  the  Queen's  Bench,  not  long  after 
the  decision  of  the  House  of  Lords  in  Rylands  v.  Fletcher.  The  de- 
fendants were  a  company  incorporated  under  an  act  in  1832  empower- 
ing them  to  make  and  maintain  a  railway,  but  containing  no  express 
power,  such  as  is  contained  in  the  Railways  Clauses  Consolidation  Act 
of  1845,  to  use  locomotive  engines.  The  defendants  used  a  steam 
locomotive  engine;  and  in  passing  the  plaintiff's  premises  the  engine 
emitted  sparks,  which  ignited  the  plaintiff's  haystack.  The  Court  of 
Queen's  Bench,  on  the  principle  of  Fletcher  v.  Rylands,  held  the  de- 
fendants responsible.  Blackburn,  J.,  says  (p.  736):  "  The  defendants 
were  using  a  locomotive  engine,  with  no  express  parliamentary  powers 
making  lawful  that  use,  and  they  are  therefore  at  common  law  bound 
to  keep  the  engines  from  doing  injury;  and  if  the  sparks  escape  and 
cause  damage,  the  defendants  are  liable  for  the  consequences,  though 
no  actual  negligence  be  shown  on  their  part."  The  same  principle  is 
applied  by  the  Court  of  Appeal  in  Powell  v.  Fall  (1880),  5  Q.  B.  D.  597; 
49  L.  J.  Q.  B.  428,  to  the  use  of  a  steam  locomotive  on  a  turnpike  road, 
the  Locomotive  Acts,  1861  and  1865,  which  apply  to  the  use  of  locomo- 
tives on  turnpike  roads,  affording  no  defence,  as  they  carefully  preserve 
the  right  of  action  for  a  nuisance. 

In  Wilson  v.  Newberry  (1871),  L.  R.,  7  Q.  B.  31;  41  L.  J.  Q.  B. 
31,  on  a  declaration  that  the  defendant  was  possessed  of  yew  trees  the 
clippings  of  which  he  knew  to  be  poisonous;  and  that  he  took  so  little 
care  of  the  clippings  that  the  same  were  placed  on  land  not  occupied  by 
him.  whereby  the  horses  of  the  plaintiff  were  poisoned:  it  was  held  (on 
demurrer)  that  no  cause  of  action  was  disclosed.  It  was  not  alleged 
that  the  plaintiffs  clipped  the  trees,  or  caused  them  to  be  placed  on  the 
neighbour's  land.  The  rule  in  Fletcher  v.  Rylands  related  to  the  escape 
of  something  which  had  a  tendency  to  escape,  not  to  something  which 
might  be  carried  by  the  act  of  a  stranger.     But  in  Crowhurst  v.  Burial 


ACCIDENT.  269 


Nos.  5,  6.  —  Fletcher  v.  Rylands,  &.c.  —  Notes. 


Board  of  Amersham  (1878),  4  Ex.  D.  5;  48  L.  J.  Exch.  109,  the  defend- 
ants having  planted,  within  four  feet  of  their  own  boundary,  a  yew-tree 
which  grew  through  and  beyond  the  railings,  and  poisoned  the  plaintiff's 
horse,  who  eat  the  berries,  were  held  liable,  on  the  principle  Sic  utere 
tuo  ut  alienum  non  laedas,  as  applied  in  Fletcher  v.  Rylands. 

Smith  v.  Fletcher  (1872),  L.  II.,  7  Ex.  305;  41  L.  J.  Exch.  193,  was 
a  case  very  similar  to  Fletcher  v.  Rylands.  An  accumulation  of  water 
was  the  result  —  the  natural,  though  not  the  desired  result  —  of  artifi- 
cial operations  of  the  defendant.  The  plaintiff  having  been  damaged 
by  the  invasion  of  this  water,  it  was  held  that  the  defendants,  having 
brought  the  water  there  without  providing  means  for  its  getting  away 
safely,  were  liable. 

In  Crompton  v.  Lea  (1874),  L.  E.,  19  Eq.  115;  44  L.  J.  Ch.  69,  a 
bill  in  Chancery  averred  that  a  mine  which  the  defendant  threatened  to 
work  could  not  be  worked  without  letting  in  a  river  and  flooding  de- 
fendant's mine,  and  through  that  the  plaintiff's  mine.  A  demurrer  was 
overruled  by  Vice  Chancellor  Hall,  on  the  ground  that  the  work  alleged 
to  be  intended,  if  it  could  not  be  done  without  this  consequence,  was 
not  an  ordinary  operation  of  mining  which  the  proprietor  as  such  was 
entitled  to  carry  on;  and  that  the  common  rule  as  between  mines  on 
different  levels  did  not  apply,  but  the  rule  of  Rylands  v.  Fletcher  must 
be  applied.  There  is  a  well-known  distinction  in  regard  to  accumula- 
tions of  water  arising  in  the  ordinary  operations  of  mining.  And 
where  cracks  in  a  previously  impervious  surface  are  made,  by  the 
ordinary  operations  of  mining,  by  A.,  so  that  the  rainfall  over  that  sur- 
face flows  into  the  adjacent  lower  coal-field  of  B.,  that  forms  no  ground 
of  complaint  by  B.  against  A.,  who  has  only  made  the  natural  use  of 
his  property :  Wilson  v.  Waddell  (H.  L.  on  appeal  from  Scotland,  1876), 
2  App.  Cas.  95.  The  principle  of  Smith  v.  Kenrirh  (1849),  7  C.  B. 
515;  18  L.  J.  C.  P.  172  (referred  to  on  pp.  246  and  258,  supra)  was  here 
adopted  and  applied.  The  same  principle  is  again  applied  by  the  Court 
of  Appeal  in  West  Cumberland  Iron  Co.  v.  Kenyon  (1879),  11  Ch.  D. 
782;  48  L.  J.  Ch.  793,  where  defendant  in  sinking  a  shaft  had  tapped 
the  water  accumulated  in  old  workings,  and  then  made  a  bore  hole  at  the 
bottom  of  the  shaft  to  let  the  water  out.  It  was  held  that  he  was  not 
liable  for  the  consequential  flooding  of  plaintiff's  mine. 

If  dampness  to  A.'s  house  comes  through  an  artificial  work  of  B.  in 
the  nature  of  a  large  artificial  sponge  which  collects,  absorbs,  and  keeps 
it  together  "  until  it  oozes  out  by  reason  of  the  nature  of  the  sponge," 
it  is  a  matter  for  which  B.  is  responsible.  Per  Jessel,  M.  R.,  Broder 
v.  Saillard  (1876),  2  Ch.  D.  692;  45  L.  J.  Ch.  414. 

In  a  case  before  the  Superior  Court  in  Scotland,  Chalmers  v.  Dixon 
(1876),  Court  of  Session,  4th  series,   vol.  3,  p.  461,  the  defendants, 


270  ACCIDENT. 


Nos.  5,  6.  —  Fletcher  v.  Eylands,  &c.  —  Notes. 


a  company  of  ironmasters,  had  in  the  course  of  their  trade  accumulated 
ironstone  refuse  into  an  enormous  mass,  which  by  some  unexplained 
cause  got  ignited,  causing  a  nuisance  to  the  plaintiff.  It  was  a  rare 
occurrence  for  such  stuff  to  become  ignited  spontaneously,  but  when 
ignited  it  was  in  its  nature  practically  impossible  to  extinguish.  It  was 
held  that  the  plaintiff  was  entitled  to  recover,  without  proof  of  specific 
fault. 

In  Humphries  v.  Cousins  (1877),  2  C.  P.  D.  239;  46  L.  J.  C.  P.  438, 
plaintiff  and  defendant  were  the  respective  occupiers  of  adjoining  houses, 
through  both  of  which  an  old  drain  passed.  The  part  of  the  drain  on  de- 
fendant's premises  was  decayed,  and  his  sewage  escaped  and  did  damage 
to  the  plaintiff's  premises.  The  defendant  was  held  liable.  In  the  judg- 
ment of  the  Court  (Dexmax  and  Lindley,  JJ.,  delivered  by  the  lat- 
ter), it  was  (p.  245)  observed  that  the  true  doctrine  is  contained  in  the 
following  passage  of  the  judgment  of  Blackburn,  J.,  in  the  case  of 
Hodgkinson  v.  Ennor  (4  B.  &  S.  at  p.  241):  "I  take  the  law  to  be  as 
stated  in  Tenant  v.  Goldwin  (2  Lord  Raym.  1089,  Salk.  21,  360),  that 
you  must  not  injure  the  propert}r  of  your  neighbour;  and  consequently 
if  filth  is  created  on  any  man's  land,  then  in  the  quaint  language  of  the 
report  in  Salkeld,  361,  '  he  whose  dirt  it  is  must  keep  it  that  it  may  not 
trespass.'  " 

In  Hurdman  v.  N.  E.  Ry.  Co.  (C.  A.  1878),  3  C.  P.  D.  168;  47  L.J. 
C.  P.  368,  a  statement  that  the  surface  of  defendant's  land  had  been  arti- 
ficially raised,  and  that  consequently  the  rainfall  over  defendant's  land 
made  its  way  through  defendant's  wall  into  the  adjoining  house  of  the 
plaintiff,  was,  on  demurrer,  held  to  state  a  good  cause  of  action. 

In  Box  v.  Juhb  (1879),  4  Ex.  I).  76;  48  L.  J.  Exch.  417,  where  the 
overflow  of  the  defendant's  reservoir  was  caused  by  acts  of  other  persons, 
over  whose  acts  he  had  no  control,  —  namely,  the  combined  effect  of 
tlie  emptying  of  a  reservoir  above  and  an  obstruction  in  a  watercourse 
below,  —  the  defendant  was  held  not  liable.  See  observations  as  to  the 
judgment  of  the  Court  of  Exchequer  in  this  case,  p.  267,  supra. 

Where  an  accumulation  of  water  has,  by  means  of  an  unprecedented 
rainfall,  come  upon  the  property  of  A.  so  as  to  endanger  it,  he  is  not 
entitled  to  secure  his  property  by  diverting  the  mass  of  water  upon  B.'s 
land,  so  as  to  do  damage  there.  Whalley  v.  Lane.  &  York  R>j.  Co. 
(C.  A.  1881  ).  13  Q.  B.  D.  131;  53  L.  J.  Q.  B.  285.  In  that  case,  water 
had  collected  above  a  railway  embankment  so  as  to  endanger  the  rail- 
way; and  the  company  had  made  a  cutting  through  the  embankment, 
letting  the  water  out.  It  was  assumed  in  the  argument  that  the  flood 
was  extraordinary,  and  such  as  could  not  be  expected  ;  otherwise  the 
question  might  have  arisen  whether  the  company  could  not  have  averted 
the  danger  in  the  first  instance  by  proper  culverts  and  drains. 


ACCIDENT.  271 


Nos.  5,  6.  —  Fletcher  v.  Rylands,  &-c.  —  Notes. 

In  Snow  v.  Whitehead  (1884),  37  Ch.  D.  588;  53  L.  J.  Ch.  885,  the 
defendant  while  building  a  house  allowed  water  to  collect  in  his  cellar 
and  to  percolate  into  the  plaintiff's  cellar;  it  was  held  by  Kav,  J.,  that 
the  principle  of  Rylands  v.  Fletcher  applied,  and  that  the  plaintiff  was 
entitled  to  damages. 

In  Ballard  v.  Tomlinson  ( 1885),  29  Ch.  D.  115;  54  L.  J.  Ch.  454,  the 
defendant  had  dug  a  well  on  his  own  premises,  and  after  discontinuing 
the  use  of  it  as  a  well,  constructed  a  drain  by  means  of  which  the  sewage 
from  a  water-closet  found  its  way  into  the  well,  and  contaminated  the 
supply  of  the  plaintiff's  well.  It  was  held  by  the  Court  of  Appeal, 
reversing  the  judgment  of  Pearson,  J.,  that  the  plaintiff  was  entitled  to 
an  injunction,  as  well  as  damages.  The  judgment  of  Mr.  Justice  Peak- 
son  had  been  founded  upon  Chasemore  v.  Richards  (No.  16  under  the 
head  "  Action,1'  post).  In  effect  the  Court  of  Appeal  decided  that,  though 
a  man  may  suck  dry  the  stratum  which  is  a  common  sponge  for  himself 
and  his  neighbours,  he  is  not  entitled  to  poison  the  sponge. 

A  different  element  is  involved  where  the  accumulation  of  water  is 
brought  on  the  land,  not  merely  for  the  defendant's  own  purposes,  but 
for  a  purpose  in  which  plaintiff  and  defendant  have  a  common  interest. 

Madras  Ry.  Go.  v.  Zemindar  of  Carvatenagarum  (Judicial  Com- 
mittee of  P.  C.  on  appeal  from  India,  1874),  L.  E.,  1  Ind.  App.  364, 
was  a  case  in  which  the  plaintiffs,  the  railway  company,  sued  the 
defendant  for  damage  produced  by  the  bursting  and  consequent  escape 
of  the  water  of  two  ancient  tanks.  These  tanks  it  was  the  duty  of  the 
defendant,  the  Zemindar,  to  maintain  as  part  of  an  ancient  national 
system  of  irrigation.  It  was  found  as  a  fact  by  the  judge  of  first 
instance,  that  the  defendant  had  used  all  reasonable  precautions  in  the 
maintenance  of  the  tanks;  that  they  were  constructed  with  escapements 
sufficient  for  all  ordinary  floods;  and  that  the  breach  took  place  by  an 
extraordinary  flood.  The  Judicial  Committee,  affirming  the  judgment 
of  the  High  Court  of  Madras,  as  well  as  of  the  judge  of  first  instance, 
held  that  the  defendants  were  not  liable.  The  same  principle  was 
applied  in  a  more  recent  case  to  the  liability  of  a  proprietor,  ratione 
tenurae,  to  repair  an  ancient  sea-wall  forming  a  common  defence  for 
the  low  level  lands  of  himself  and  other  owners.  Repairs  having  been 
necessitated  by  an  extraordinary  high  tide  and  storm,  the  proprietor 
was  held  entitled  (having  made  the  repairs)  to  lie  reimbursed  by  a  rate 
on  the  owners  of  the  whole  level.  Reg.  v.  Commissioners  of  Sew&>*s 
for  Essex  (C.  A.  1884),  14  Q.  B.  D.  561. 

The  same  principle  applies  in  the  cast'  of  a  common  water-supply  en- 
joyed by  the  occupiers  of  the  different  floors  of  a  bouse.  In  Anderson  v. 
Oppenheimer  (C.  A.  1880),  5  Q.  B.  D.  602;  49  L.  J.'  Q.  B.  708,  the 
plaintiff,  who  was  the  tenant  of  the  basement  of  a  house  owned  by  the 


272  ACCIDENT. 


Nos.  5,  6.  —  Fletcher  v.  Rylands,  &/C.  —  Notes. 

defendant  and  let  by  him  in  separate  floors  to  different  tenants,  had 
suffered  damage  through  the  bursting  of  a  water-pipe  forming  part  of 
the  system  for  the  common  supply  of  the  house:  it  was  held  that,  the 
water  being  stored  for  the  benefit  of  the  defendant  in  common  with  the 
plaintiff  and  his  other  tenants,  the  principle  of  Rylands  v.  Fletcher 
did  not  apply;  and  the  defendant,  not  having  been  guilty  of  any  negli- 
gence in  keeping  and  maintaining  the  pipe,  which  the  jury  had  found 
to  be  reasonably  tit  and  proper  for  the  supply,  was  not  liable.  Boss  v. 
Fedden  (1872),  L.  K.,  7  Q.  B.  661;  41  L.  J.  Q.  B.  270,  was  a  similar 
decision  in  an  action  between  two  tenants  of  different  floors  of  a  house. 
There  had  been  a  similar  decision  in  a  case  where  the  defendant  was 
himself  the  landlord  occupying  the  upper  part  of  the  house.  Carstairs 
v. "Taylor  (1871),  L.  R.,  6  Ex.  217;  40  L.  J.  Exch.  129.  And  tbere  is 
a  similar  decision  by  Stephen,  J.,  in  Blake  v.  Land&  House  Property 
Corporation  (1887),  3  Times  R.  667.  But  the  occupier  of  the  upper  floor 
is  liable  for  the  negligent  act  of  a  servant  in  the  course  of  his  employ- 
ment. As  where  a  tap  in  a  lavatory  intended  for  use  of  defendant's 
clerks  is  negligently  left  running  by  one  of  the  clerks.  Buddiman  v. 
Smalt,  (1SS9),  60  L.  T.  708. 

AMERICAN   NOTES. 

The  case  of  Fletcher  v.  Rylands  has  been  cited  and  its  doctrine  approved  in 
Wuson  v.  City  of  New  Bedford,  108  Massachusetts,  201  ;  11  Am.  Rep.  352, 
a  case  of  water  percolating  from  a  reservoir;  in  Shipley  v.  Fifty  Associates, 
100  Massachusetts,  194;  8  Am.  Rep.  318,  a  case  of  snow  and  ice  falling  from  a 
roof  into  a  street;  in  Gorhamv.  Gross,  125  Massachusetts,  232;  28  Am.  Rep. 
234,  a  case  of  a  falling  wall ;  in  Cahill  v.  Eastman,  18  Minnesota,  324  ;  10  Am. 
Rep.  184,  a  case  of  a  tunnel  excavated  under  a  stream,  and  the  water  breaking 
through  and  Undermining  plaintiff's  land,  —  a  very  learned  examination  of 
the  English  and  American  adjudications;  in  Colton  v.  Onderdonk,  09  Cali- 
fornia, 155;  58  Am.  Rep.  550,  a  case  of  blasting;  Sanderson  v.  Penn.  Coal 
Co.,  80  Penn.  St.  401  ;  27  Am.  Rep.  711,  fouling  a  stream  by  a  colliery. 
(But  in  a  later  hearing  of  the  same  case,  113  Penn.  St.  120  ;  50  Am.  Rep.  89, 
note,  Fletcher  v.  Eylands  was  distinguished,  and  also  disapproved.) 

The  doctrine  of  Fletcher  v.  Rylands  is  perhaps  impliedly  recognized  in 
Pixley  v.  Clark,  35  New  York,  520,  the  case  of  water  percolating  through  a 
reservoir ;  in  Heeg  v.  Licht,  811  New  York,  579  ;  30  Am.  Rep.  654,  the  case  of 
keeping  gunpowder;  Jacobs  v.  Allard,  42  Vermont,  303;  1  Am.  Rep.  331,  dis- 
charging waste  into  a  stream  ;  in  People  v.  Gold,  Sfc.  Co.,  60  California,  138; 
50  Am.  Rep.  80,  discharging  gravel  into  a  stream ;  Mairs  v.  Manhattan,  8cc. 
Ass'n,  89  New  York,  498,  accidental  escape  of  collected  surface  water  in  a 
street. 

The  doctrine  of  Fletcher  v.  Rylands  is  impliedly  denied  in  Swell  v.  Cuds,  50 
New  Hampshire,  439;  9  Am.  Rep.  270,  a  case  of  surface  water. 

In  respect  to  explosions,  the  leading  American  case  is  Hay  v.  Cohoes  Co.,  2 


ACCIDENT. 


Nos.  5,  6.  —  Fletcher  v.  Rylands,  &c.  —  Notes. 


New  York,  159,  in  which  the  defendant  was  held  liable  for  injury  to  his  neigh- 
bour's land  by  blasting  on  his  own,  without  reference  to  the  question  of  negli- 
gence. This  was  followed  in  the  similar  cases  of  City  of  Tiffin  v.  McCormack, 
34  Ohio  St.  638;  32  Am.  Rep.  408;  Mc  Andrews  v.  Colierd,  13  Vroom,  189; 
36  Am.  Rep.  508  ;  Mairs  v.  Manhattan.  Sfc.  Ass'n,  89  New  York,  498,  in  these 
cases  the  defendant's  act  was  intrinsically  dangerous. 

This  doctrine  however  has  been  held  not  to  extend  to  the  explosion  of  a 
steam-boiler,  in  the  absence  of  negligence.  Losee  v.  Buchanan.  51  Xew  York, 
476 ;  10  Am.  Rep.  623,  distinguishing  Hay  v.  Co/toes  Co.  and  Fletcher  v.  Rylands, 
the  latter  on  the  ground  that  it  was  based  on  the  rule  respecting  the  escape 
of  animals,  but  observing  that  "the  law  as  laid  down"  in  that  case  "is  in 
direct  conflict  with  the  law  as  settled  in  this  country,"  and  citing  Lapham  v. 
Curtis,  5  Vermont,  371 ;  Todd  v.  Cochell,  17  California,  97 ;  Shrewsbury  v. 
Smith,  12  Gushing.  177;  Pixley  v.  Clark,  35  New  York,  520;  Sheldon  v.  Sher- 
man, 42  id.  484;  1  Am.  Rep.  569. 

Losee  v.  Buchanan  is  followed  in  Marshall  v.  Welwood,  9  Vroom  (New  .Jer- 
sey), 339 ;  20  Am.  Rep.  394,  a  precisely  similar  case.  Of  Fletcher  v.  Rylands 
the  court  say  :  — 

"  This  principle  would  evidently  apply  to,  and  rule,  the  present  case  ;  for 
water  is  no  more  likely  to  escape  from  a  reservoir  and  do  damage,  than  steam 
is  from  a  boiler;  and  therefore  if  he  who  collects  the  former  force  upon  his 
property,  and  seeks,  with  care  and  skill,  to  keep  it  there,  is  answerable  for  his 
want  of  success,  so  is  he  who  under  similar  conditions  endeavours  to  deal  with 
the  latter.  There  is  nothing  unlawful  in  introducing  water  into  a  properly 
constructed  reservoir  on  a  person's  own  land,  nor  raising  steam  in  a  boiler  of 
proper  quality ;  neither  act,  when  performed,  is  a  nuisance  per  se  ;  and  the 
inquiry  consequently  is,  whether  in  the  doing  of  such  lawful  act  the  party 
who  does  it  is  an  insurer  against  all  flaws  in  the  apparatus  employed,  no  mat- 
ter how  secret,  or  unascertainable  by  the  use  of  every  reasonable  test,  such 
flaws  may  be.  This  English  adjudication  takes  the  affirmative  side  of  the 
question,  conceding  however  that  the  subject  is  not  controlled  by  any  express 
decision,  and  that  it  is  to  be  investigated  with  reference  to  the  general 
grounds  of  jurisprudence.  I  have  said  the  doctrine  involved  has  been  learn- 
edly treated,  and  the  decision  is  of  great  weight,  and  yet  its  reasoning  has 
failed  to  convince  me  of  the  correctness  of  the  result  to  which  it  leads,  and 
such  result  is  clearly  opposed  to  the  course  which  judicial  opinion  has  taken 
in  this  country.  The  fallacy  in  the  process  of  argument  by  which  judgment 
is  reached  in  this  case  of  Fletcher  v.  Rylands,  appears  to  me  to  consist  in  this : 
that  the  rule  mainly  applicable  to  a  class  of  cases  which,  I  think,  should 
be  regarded  as  in  a  great  degree  exceptional,  is  amplified  and  extended  into 
a  general,  if  not  universal  principle.  The  principal  instance,  upon  which 
reliance  is  placed,  is  the  well-known  obligation  of  the  owner  of  cattle,  to  pre- 
vent them  from  escaping  from  his  land  and  doing  mischief.  The  law  as  to 
this  point  is  perfectly  settled,  and  has  been  settled  from  the  earliest  times, 
and  is  to  the  effect,  that  the  owner  must  take  charge  of  his  cattle  at  his 
peril,  and  if  they  evade  his  custody  he  is,  in  some  measure,  responsible  for 
the  consequences.  This  is  the  doctrine  of  the  Year  Books,  but  I  do  not  find 
vol.  i   —18 


274  ACCIDENT. 


Nos.  5,  6.  —  Fletcher  v.  Rylands,  &.c.  —  Notes. 


that  it  is  grounded  in  any  theoretical  principle,  making  a  man  answerable 
for  his  acts  or  omissions,  without  regard  to  his  culpability.  That  in  this 
particular  case  of  escaping  cattle  so  stringent  an  obligation  upon  the  owner 
should  grow  up,  was  not  unnatural.  That  the  beasts  of  the  landowner 
-should  be  successfully  restrained,  was  a  condition  of  considerable  impor- 
tance to  the  unmolested  enjoyment  of  property,  and  the  right  to  plead  that 
the  escape  had  occurred  by  inevitable  accident,  would  have  seriously  im- 
paired, if  it  did  not  entirely  frustrate,  the  process  of  distress  damage  feasant. 
Custom  has  had  much  to  do  in  giving  shape  to  the  law,  and  what  is  highly 
convenient  readily  runs  into  usage,  and  is  accepted  as  a  rule.  It  would  but 
rarely  occur  that  cattle  would  escape  from  a  vigilant  owner,  and  in  this 
instance  such  rare  exceptions  seem  to  have  passed  unnoticed,  for  there  appears 
to  be  no  example  of  the  point  having  been  presented  for  judicial  considera- 
tion :  for  the  conclusion  of  the  liability  of  the  unnegligent  owner  rests  in 
dicta,  and  not  in  express  decision.  But  waiving  this,  there  is  a  consideration 
which  seems  to  me  to  show  that  this  obligation  which  is  put  upon  the  owner 
of  errant  cattle  should  not  be  taken  to  be  a  principle  applicable,  in  a  general 
way,  to  the  use  or  ownership  of  property,  which  is  this  :  that  the  owner  of 
such  cattle  is,  after  all,  liable  only  sub  modo  for  the  injury  done  by  them, 
that  is,  he  is  responsible,  with  regard  to  tame  beasts  who  have  no  exception- 
ally vicious  disposition  so  far  as  is  known,  for  the  grass  they  eat,  and  such 
like  injuries,  but  not  for  the  hurt  they  may  inflict  upon  the  person  of  others, 
—  a  restriction  on  liability  which  is  hardly  consistent  with  the  notion  that 
this  class  of  cases  proceeds  from  a  principle  so  wide  as  to  embrace  all  per- 
sons whose  lawful  acts  produce,  without  fault  in  them,  and  in  an  indirect 
manner,  ill  results  which  disastrously  affect  innocent  persons.  If  the  prin- 
ciple ruling  these  cases  was  so  broad  as  this,  conformity  to  it  would  require 
that  the  person  being  the  cause  of  the  mischief  should  stand  as  an  indem- 
nifier  against  the  whole  of  the  damage.  It  appears  to  me  therefore  that  this 
rule,  which  applies  to  damage  done  by  straying  cattle,  was  carried  beyond  its 
true  bounds,  when  it  was  appealed  to  as  proof  that  a  person  in  law  is  answer- 
able for  the  natural  consequences  of  his  acts,  such  acts  being  lawful  in 
themselves,  and  having  been  done  with  proper  care  and  skill." 

The  doctrine  of  Fletcher  v.  Rylands  is  disapproved  in  Brown  v.  Collins,  53 
New  Hampshire.  442;  Hi  Am.  Rep.  372,  the  case  of  a  runaway  horse,  and  in 
■Garland  v.  Towne,  55  New  Hampshire,  55;  20  Am.  Rep.  104,  a  case  of  snow 
and  ice  falling  from  a  roof  into  the  street.  In  the  latter  case,  the  court, 
speaking  of  Fletcher  v.  Rylands,  say:  "I  am  not  aware  that  any  court  on 
this  side  the  Atlantic  has  gone  so  far  as  this,"  and  -  1  apprehend  it  would 
he  a  surprise,"  &c.     In  the  former  case  the  court  say:  — 

"  Everything  that  a  man  can  bring  on  his  land  is  callable  of  escaping, 
against  his  will,  and  without  his  fault,  with  or  without  assistance,  in  some 
form,  solid,  liquid,  or  gaseous,  changed  or  unchanged  by  the  transforming 
processes  of  nature  or  art,  and  of  doing  damage  after  its  escape.  Moreover 
if  there  is  a  legal  principle  that  makes  a  man  liable  for  the  natural  con- 
sequences of  the  escape  of  things  which  he  brings  on  his  land,  the  application 
of  such  a  principle  cannot  be  limited  to  those  things  ;  it  must  be  applied  to 


ACCIDENT.  275 

Nos.  5,  6.  —  Fletcher  v.  Rylands,  &-c.  —  Notes. 


all  his  acts  that  disturb  the  original  order  of  creation;  or  at  least  to  all 
things  which  he  undertakes  to  possess  or  control  anywhere,  and  which  were 
not  used  and  enjoyed  in  what  is  called  the  natural  or  primitive  condition  of 
mankind,  whatever  that  may  have  been.  This  is  going  bacls  a  Long  way  for 
-si  standard  of  legal  rights,  and  adopting  an  arbitrary  test  of  responsibility 
•that  confounds  all  degrees  of  danger,  pays  no  heed  to  the  essential  elements 
of  actual  fault,  puts  a  clog  upon  natural  and  reasonably  necessary  uses  of 
matter,  and  tends  to  embarrass  and  obstruct  much  of  the  work  which  it  seems 
to  be  man's  duty  carefully  to  do.  The  distinction  made  by  Lord  Cairns, 
Jtylands  v.  Fletcher,  L.  R.,  3  II.  L.  330,  between  a  natural  and  a  non-natural 
use  of  land,  if  he  meant  anything  more  than  the  difference  between  a 
reasonable  use  and  an  unreasonable,  one,  is  not  established  in  the  law. 
Even  if  the  arbitrary  test  were  applied  only  to  things  which  a  man  brings 
in  his  land,  it  would  still  recognize  the  peculiar  rights  of  savage  life  in  the 
-wilderness,  ignore  the  rights  glowing  out  of  a  civilized  state  of  society,  and 
make  a  distinction  not  warranted  by  the  enlightened  spirit  of  the  common 
law  :  it  wrould  impose  a  penalty  upon  efforts,  made  in  a  reasonable,  skilful, 
and  careful  manner,  to  rise  above  a  condition  of  barbarism.  It  is  impossible 
that  legal  principle  can  throw  so  serious  an  obstacle  in  the  way  of  progress 
and  improvement.  Natural  rights  are,  in  general,  legal  rights;  and  the 
arights  of  civilization  are,  in  a  legal  sense,  as  natural  as  any  others.  'Most 
of  the  rights  of  property,  as  well  as  of  person,  in  the  social  state,  are  not 
absolute  but  relative. '  (Losee  v.  Buchanan,  51  New  York,  485)  ;  and  if  men  ever 
-were  in  any  other  than  the  social  state,  it  is  neither  necessary  nor  expedient 
that  they  should  now  govern  themselves  on  the  theory  that  they  ought  to  live 
in  some  other  state.  The  common  law  does  not  usually  establish  tests  of 
responsibility  on  any  other  basis  than  the  propriety  of  their  living  in  the 
social  state,  and  the  relative  and  qualified  character  of  the  rights  incident  to 
that  state." 

Fletcher  v.  Rylands  is  also  disapproved  (although  distinguished)  in  Penn. 
Coal  Co.  v.  Sanderson,  113  Penn.  St.  126;  50  Am.  Rep.  89,  note.  The  court 
.■say:  "  A  rule  which  casts  upon  an  innocent  person  the  responsibility  of  an 
insurer  is  a  hard  one  at  the  best,  and  will  not  be  generally  applied,  unless 
required  by  some  public  policy  on  the  contract  of  the  parties."  It  "  has  not 
been  generally  received  in  this  country." 

Mr.  Freeman,  the  editor  of  American  Decisions,  says  in  a  note,  29  id.  149, 
Hiat  "the  doctrine  is  not  adopted  in  this  country,  and  Judge  Oliver  AYex- 
dell  Holmes,  Jr.,  condemns  it  in  14  American  Law  Review,  p.  1. 

Judge  Cooley  observes  (Torts,  573),  citing  the  principal  cases  :  "  A  com- 
parison of  these  cases  seems  to  show  the  English  rule  to  be  as  follows: 
Whoever  gathers  water  into  a  reservoir,  where  its  escape  would  be  injurious 
to  others,  must  at  his  peril  make  sure  that  the  reservoir  is  sufficient  to  retain 
the  water  which  is  gathered  into  it.  But  if  thus  sufficient  in  construction, 
the  liability  for  the  subsequent  escape  of  the  water  becomes  a  question  of 
negligence.  The  proprietor  is  not  liable  if  the  water  escape  because  of  the 
•wrongful  act  of  a  third  party,  or  from  vis  major,  or  from  any  other  cause  con- 
sistent with  the  observance  of  due  and  reasonable  care  by  him.  Due  care 
must  of  course  be  a  degree  of  care  proportioned  to  the  danger  of  injury  from 


276  ACCIDENT. 


No.  7.  —  Nitro-Phosphate,  &c.  Co.  v.  London  and  St.  Katharine  Docks  Co.  —  Rule. 

the  escape ;  but  it  is  not  very  clear  that  the  English  rule,  as  thus  explained, 
differs  from  that  of  this  country."  But  at  p.  570  he  says:  "Of  reservoirs 
which  cause  injuries  to  the  lower  proprietors  only  as  they  break  away,  the 
American  cases  seem  to  plant  the  liability  on  the  ground  of  negligence." 

The  doctrine  of  Fletcher  v.  Rylands  is  carefully  discussed  by  Mr.  Bigelow 
(Lead.  Cases  on  Torts,  492).  His  conclusion  is  that  the  doctrine  is  in  "  a 
confused  state." 

The  question  of  liability  for  the  collection  and  constant  injurious  discharge 
of  surface  water  is  distinguishable  from  the  question  in  Fletcher  v.  Rylands, 
and  it  is  uniformly  held,  we  believe,  that  such  injury  forms  a  valid  ground 
of  action ;  and  in  respect  to  communication  of  fire  it  is  uniformly  held  that 
this  affords  no  ground  for  recovery  unless  the  fire  is  negligently  set  or 
tended. 


No.  7.  —  NITRO-PHOSPHATE,    &c.   CO.    v.   LONDON    &   ST. 
KATHARINE   DOCKS    CO. 

(c.  a.  from  Fry,  J.,  in  Chancery  Division,  1877.) 

RULE. 

Where  a  defendant  charged  with  negligent  damage  has 
been  guilty  of  such  negligence  as  would  have  produced 
the  damage  complained  of,  he  cannot  excuse  himself  on 
the  ground  of  inevitable  accident  by  showing  that  the 
damage  would  have  been  incurred  through  an  unavoidable 
cause,  although  he  had  done  his  duty.  But  if  he  can  show 
that  a  substantial  and  fairly  ascertainable  portion  of  the 
damage  which  actually  happened  is  to  be  attributed  solely 
to  that  unavoidable  cause,  the  liability  for  damage  will  be 
apportioned. 

Nitro-phosphate,  &c.  Co.  v.  London  &  St.  Katharine  Docks  Co. 

9  Ch.  D.  503  (s.  c.  39  L.  T.  433 ;  27  W.  R.  267). 

This  was  an  action  to  recover  damages  for  an  injury  caused  to 
the  plaintiffs'  works  and  property  by  an  overflow  of  water  from  the 
defendants'  dock,  which,  as  the  plaintiffs  alleged,  resulted  from  the 
defendants'  negligence  in  not  having  maintained  the  retaining  wall 
of  their  dock,  called  the  Victoria  Dock,  at  a  sufficient  height. 

The  plaintiffs  were  the  owners  of  a  manufactory  for  chemical 
manures,  situate  at  Plaistow,  in  Essex.     The  defendants  were  the 


ACCIDENT.  277 


No.  7.  —  Nitro-Phosphate,  &-c.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

owners  of  the  Victoria  Dock,  which  nearly  adjoined  the  premises 
of  the  plaintiffs.  The  dock  was  approached  from  the  river  by  a 
narrow  artificial  channel  and  an  artificial  tidal  basin,  through  which 
the  water  was  admitted  into  the  dock.  The  entrance  gates  of  the 
channel  were  so  constructed  as  to  admit  and  retain  the  water  of  the 
river,  and  as  the  tide  rose  the  water  flowed  from  the  river  througn 
the  channel  into  the  tidal  basin.  The  natural  level  of  the  land  on 
which  the  plaintiffs'  premises  were  situate  and  on  which  the  defen- 
dants' dock  was  constructed  was  some  seven  or  eight  feet  below 
Trinity  high-water  mark,  and  the  water  of  the  river  was  kept  from 
overflowing  the  whole  of  the  district  by  means  of  a  river  wall. 
The  district  was  subject  to  the  jurisdiction  of  the  Dagenham  and 
Havering  Commissioners,  who,  prior  to  November,  1875,  required 
the  owners  of  land  fronting  the  river  to  maintain  the  river  wall  at 
a  height  of  4  ft.  2  in.  above  Trinity  high-water  mark.  On  the 
20th  of  March,  1874,  there  was  a  very  high  tide  in  the  river 
Thames.  The  water  then  rose  at  London  Bridge  to  a  height  of 
4  ft.  3 1  in.  above  Trinity  high-water  mark.  This  was  the  highest 
tide  which  had  been  up  to  that  time  recorded  in  the  river.  The 
highest  tide  previously  recorded  since  the  year  1852  was  in  March, 
1869,  when  the  water  rose  3  ft.  7  in.  above  Trinity  high-water 
mark  at  London  Bridge.  On  the  20th  of  March,  1874,  a  small 
quantity  of  water  overflowed  the  retaining  bank  of  the  defendants' 
entrance  channel  and  basin  and  found  its  way  into  the  plaintiffs' 
.premises.  The  plaintiffs  then  gave  notice  to  the  defendants  that 
they  should  hold  them  liable  for  the  damage  thus  caused.  The 
defendants,  however,  repudiated  their  liability,  and  no  steps  were 
taken  to  enforce  the  claim.  In  April,  1874,  when  another  high 
tide  was  anticipated,  the  defendants  placed  some  clay  on  the  top  of 
their  bank  ;  but  this  was  only  a  temporary  addition  to  its  height, 
and  was  not  maintained  afterwards.  No  tide  of  equal  height  oc- 
curred again,  and  no  further  overflow  of  water  from  the  defendants' 
channel  or  basin  took  place  before  November,  1875.  Early  in  the 
morning  (about  2.30  A.  M.)  of  the  15th  of  November,  1875,  there 
was  again  an  extraordinarily  high  tide  in  the  Thames.  The  water 
then  rose  at  London  Bridge  to  a  height  of  4  ft.  6  in.  above  Trinity 
high- water  mark.  It  rose  to  4  ft.  5  in.  at  the  Victoria  Dock,  and 
there  was  a  general  overflow  of  the  river  in  that  district.  A  large 
quantity  of  water  found  its  way  into  the  plaintiffs'  premises  and 
caused  considerable  damage  to  their  works  and  stock-in-trade.     This 


278  ACCIDENT. 


No.  7.  —  Nitro-Phosphate,  &/C.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

water,  as  the  plaintiffs  alleged,  was  water  which  overflowed  the  bank 
of  the  defendants'  entrance  channel  and  tidal  basin  at  the  same 
place  where  the  overflow  had  occurred  in  March,  1874.  The  plain- 
tiffs alleged  that  the  defendants  were  liable  for  negligence  in  not 
keeping  their  bank  at  a  proper  height  so  as  to  prevent  the  over- 
How  of  the  water  at  high  tides,  and  they  claimed  damages  to  the 
amount  of  £7000,  and  an  injunction  to  restrain  the  defendants 
from  permitting  any  further  overflow  of  water  into  the  plaintiffs'' 
premises. 

By  their  statement  of  defence  the  defendants  denied  that  the 
water  which  had  caused  the  damage  to  the  plaintiffs  had  come  from 
their  premises.  They  also  denied  their  liability  if  the  water  had 
come  from  their  premises.  They  asserted  that  they  had  not  been 
guilty  of  any  negligence,  and  in  particular  that  the  high  tide  of  the 
loth  of  November,  1875,  was  an  act  of  God,  against  which  they 
were  not  bound  in  any  case  to  protect  the  plaintiffs. 

The  Victoria  Dock  was  constructed  by  a  company  called  the 
Victoria  (London)  Dock  Company,  which  was  incorporated  under 
that  name  by  an  Act  (13  &  14  "Vict,  c,  li.)  passed  in  1850.  By 
the  Victoria  (London)  Docks  Act,  1853  (10  &  17  Vict.  c.  exxxi.), 
the  Act  of  1850  was  repealed,  but  (by  §  4)  it  was  provided  that, 
notwithstanding  the  repeal,  the  company  should  for  the  purposes 
of  the  Act  remain  as  from  the  passing  of  the  Act  of  1850,  and  con- 
tinue incorporated  by  the  name  of  The  Victoria  (London)  Dock 
Company,  "  with  power  to  make  and  maintain  docks  and  works,, 
with  all  proper  works  and  conveniences  connected  therewith,  and 
to  purchase,  take,  hold,  and  dispose  of  lands  and  other  property  for- 
the  purposes  and  within  the  restrictions  of  this  Act  and  of  the  Acts 
incorporated  herewith."  By  §  3,  the  Companies  Clauses  Consoli- 
dation Act,  1845,  the  Lands  Clauses  Consolidation  Act,  1845,  and 
the  Harbours,  Docks,  and  Piers  Clauses  Act,  1847,  were  incorporated 
with  the  special  act.  §  22  provided  as  follows:  "And  whereas  a 
plan  and  sections  of  the  dock  authorized  to  be  made  by  the  said 
recited  Act,  and  therein  described  as  the  intended  dock,  and  of  the 
works  connected  therewith,  showing  the  situation  and  levels  thereof 
'respectively,  and  the  limits  within  which  the  same  are  to  be  con- 
structed, and  also  a  book  of  reference  containing  the  names  of  the 
owners,  lessees,  and  occupiers  of  the  lands  upon  or  through  which 
the  same  are  intended  to  be  made,  were  previously  to  the  passing 
of  the  said  Act,  and  in  the  month  of  November,  1849,  deposited 


ACCIDENT.  279 


No.  7.  —  Nitro-Phosphate,  &*.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

with  the  respective  clerks  of  the  peace  for  the  counties  of  Essex 
and  Kent:  Be  it  enacted,  that,  subject  to  the  provisions  in  this 
and  the  said  incorporated  Acts  contained,  and  to  the  powers  of 
deviation,  alteration,  and  enlargement  herein  and  in  the  said  incor- 
porated Acts  contained,  it  shall  be  lawful  for  the  said  company  to 
continue,  make,  complete,  and  maintain  the  said  dock  and  the 
works  which  were  authorized  by  the  said  Act  hereby  repealed  in 
the  situation  and  upon  the  lands  delineated  upon  the  said  plans 
and  contained  in  the  said  book  of  reference,  and  according  to  the 
levels  defined  on  the  said  sections."  §  23  empowered  the  com- 
pany, subject  to  the  provisions  of  the  special  Act  and  of  the  Acts 
incorporated  therewith,  to  alter,  vary,  and  enlarge  the  dock  and 
works  authorized  by  the  Act  of  1S50,  and  to  make  and  maintain 
additional  docks  and  other  works  connected  therewith  ;  and  §  24 
provided :  "  Whereas  plans  and  sections  of  the  additional  docks, 
enlargements,  alterations,  and  works  herein  authorized  to  be  made, 
and  also  books  of  reference  to  such  plans,  containing  the  names  of 
the  owners  or  reputed  owners,  lessees  or  reputed  lessees,  and  occu- 
piers of  the  lands  in,  upon,  or  through  which  the  same  works  are 
intended  to  pass  or  be  made,  have  been  deposited  with  the  clerks 
of  the  peace  for  the  counties  of  Essex  and  Kent :  Therefore,  subject 
to  the  provisions  in  this  and  the  said  incorporated  Acts,  and  to  the 
powers  of  deviation  in  this  Act  contained,  it  shall  be  lawful  for  the 
company  to  make  or  maintain  the  said  additional  docks,  enlarge- 
ments, alterations,  and  other  works  upon  the  lands  delineated  on 
the  said  plans  and  described  in  the  said  book  of  reference,  and 
according  to  the  levels  defined  on  the  sections." 

The  deposited  sections  (though  their  effect  was  the  subject  of 
conflicting  evidence)  showed,  in  the  opinion  of  the  court,  the  retain- 
ing bank  of  the  entrance  channel  and  tidal  basin  at  an  uniform 
level  of  four  feet  above  Trinity  high-water  mark.  The  dock  and 
works  were  completed  in  1855. 

By  the  London  and  St.  Katharine  Docks  Act,  1864  (27  &  28  Vict. 
c.  clxxviii.),  the  London  Dock  Company  and  the  St.  Katharine  Dock 
( lompany  were  amalgamated  into  one  company  by  the  name  of  The 
London  and  St.  Katharine  Docks  Company,  and  the  transfer  to 
that  company  and  theNamalgamation  with  their  undertaking  and 
docks  of  the  undertaking  and  docks  of  the  Victoria  (London)  Dock 
Company  were  authorized.  §  57  confirmed  several  agreements 
for  this  transfer  and    amalgamation   which  had  been  previously 


280  ACCIDENT. 


No.  7. — Nitro-Phosphate,  &C.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

entered  into  between  the  Victoria  Company  and  the  London  and 
St.  Katharine  Companies.  §  58  enacted  that  the  transfer  and  amal- 
gamation should  take  place  in  accordance  with  those  agreements. 
§  59  provided  that  "the  Victoria  Docks,  by  this  Act  transferred 
to  and  vested  in  the  amalgamated  company,  are  so  transferred 
to  and  vested  in  them  subject  to  the  payment,  satisfaction,  or 
discharge  by  the  amalgamated  company  of  the  whole  of  the  debts, 
liabilities,  and  engagements  of  the  Victoria  Company  as  they 
shall  be  and  exist  on  the  transfer  and  amalgamation  taking  effect, 
and  subject  also  to  the  several  statutory  obligations  relating  to  the 
Victoria  Docks  which  appear  by  the  several  sections  and  provisions 
of  the  recited  Acts  relating  to  the  Victoria  Dock  Company,  which 
are  set  forth  in  part  3  of  the  4th  schedule  to  this  Act  annexed,  and 
the  amalgamated  company's  obligations  under  this  Act  with  respect 
to  the  Victoria  Docks."  By  §  60  :  "  From  and  after  the  transfer  and 
amalgamation,  and  except  only  as  is  by  this  Act  otherwise  provided, 
the  amalgamated  company  shall  with  respect  to  the  Victoria  Docks 
and  all  matters  connected  therewith  represent  the  Victoria  Dock 
Company  as  if  that  company  and  the  amalgamated  company  had 
originally  been,  and  had  continued  without  intermission  to  be,  one 
and  the  same  body  corporate."  §  61  provided  that,  on  the  trans- 
fer and  amalgamation  taking  effect,  the  Victoria  (London)  Docks 
Act,  1853,  should  be  repealed,  but  §  62  provided  that,  notwith- 
standing that  repeal,  the  several  sections  and  provisions  of  that 
Act  which  were  set  forth  in  part  3  of  the  4th  schedule  to  the  amal- 
gamating Act  should,  so  far  as  the  same  were  at  the  time  of  the 
transfer  and  amalgamation  in  force,  remain  in  fall  force.  The 
sections  of  the  Act  of  1853  which  are  above  referred  to  were  not 
included  in  the  4th  schedule  to  the  amalgamating  Act.  §  64, 
however,  provided  that,  notwithstanding  the  repeal  of  the  Act  of 
1853  and  other  Acts  relating  to  the  Victoria  Dock  Company,  "every- 
thing before  the  repeal  thereof  done,  suffered,  and  confirmed  under 
or  by  any  of  those  Acts  shall  be  as  valid  as  if  the  repeal  thereof 
had  not  happened,  and  the  repeal  thereof  and  the  operation  of  this 
Act  respectively  shall  accordingly  be  subject  and  without  prejudice 
to  any  and  every  thing  so  done,  suffered,  and  confirmed  respectively, 
and  to  all  rights,  liabilities,  claims  and  demands,  both  present  and 
future,  which,  if  the  repeal  had  not  happened,  would  be  incident  to 
or  consequent  on  any  and  every  thing  so  done,  suffered,  and  con- 
firmed respectively ;  and  with  respect  to  all   such  things  so  done, 


ACCIDENT.  281 


No.  7.  —  Nitro-Phosphate,  &■<:.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

suffered,  and  confirmed  respectively,  and  all  such  rights,  liabilities, 
claims  and  demands,  the  amalgamated  company  shall  to  all  intents 
represent  the  Victoria  Dock  Company,  provided  that  the  generality 
of  this  provision  shall  not  be  restricted  by  any  of  the  other  provi- 
sions of  this  Act."  And  by  §  67,  "  Notwithstanding  the  repeal  of 
those  Acts,  all  plans  and  books  of  reference  .  .  .  respectively  de- 
posited for  the  purposes  of  any  of  those  Acts  with  any  clerk  of  the 
peace,  shall  remain  in  his  custody  as  if  they  were  deposited  for 
the  purposes  of  this  Act."  §  92  provided  that  "The  amalgamated 
company  shall  maintain,  manage,  regulate,  work,  and  use  the  Lon- 
don Docks  and  the  St.  Katharine  Docks  respectively,  subject  to  all 
statutory  duties,  obligations,  and  liabilities  to  which  the  London 
Dock  Company  and  the  St.  Katharine  Dock  Company  and  the 
Victoria  Dock  Company,  and  their  lessees  respectively,  immediately 
before  the  passing  of  this  Act  were,  or  but  for  this  Act  would  be, 
subject  in  respect  of  the  London  and  St.  Katharine  Docks  and 
Victoria  Docks  respectively." 

The  action  came  on  for  trial  before  Mr.  Justice  Fry  on  the  19th 
of  July,  1877. 

The  evidence  proved,  in  the  opinion  of  the  court,  that  the  water 
which  caused  the  damage  to  the  plaintiffs  came  from  the  defen- 
dants' dock,  and  that  the  defendants'  retaining  bank  was,  on  the 
15th  of  November,  1875,  for  some  distance  from  six  to  ten  inches 
below  the  height  of  four  feet  above  Trinity  high-water  mark. 

It  was  also  proved  that,  with  the  exception  of  the  overflow  in 
March,  1874,  the  water  had  never  overflowed  the  defendants'  retain- 
ing wall  from  the  time  when  it  was  first  constructed  until  Novem- 
ber, 1875.  Mr.  C.  J.  More,  the  assistant  engineer  to  the  Thames 
Conservancy  Board,  proved,  from  a  register  of  tides  kept  by  them 
at  London  Bridge,  that,  commencing  with  the  year  1868,  the  tides 
there  exceeding  three  feet  above  Trinity  high-water  mark  were  as 
follows :  — 

8th    February,  1868 3  ft.  5  in. 

1st     March,  1869 3  ft.  7  in. 

3rd    November,  1869 3  ft.  H  in. 

27th  February,  1873 3  ft.  6in. 

20th  March,  1874 4  ft.  31  in. 

15th  November,  1875 4  ft.  6  in. 

2nd    January,  1877  (morning)     ...  3  ft.  8  in. 

"  "     (evening)      .      .     .  3  ft.  Ill-  in. 

31st  January,  1877 3  ft.  4  in. 


282  ACCIDENT. 


No.  7.  —  Nitro-Phosphate,  &C.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

It  was  also  proved  that  the  tides  at  the  Victoria  Dock  were  gen- 
erally from  two  to  eight  inches  lower  than  those  at  London  Bridge, 
and  that  the  rise  of  the  water  is  much  slower  at  the  latter  part 
than  at  the  earlier  part  of  the  rise.  The  openings  in  the  walls  of 
the  embankments  on  the  north  and  south  sides  of  the  Thames, 
constructed  by  the  Metropolitan  Board  of  Works,  were  originally 
required  to  be  constructed  at  a  level  of  four  feet  above  Trinity 
high-water  mark,  but  after  the  tide  of  November,  1875,  sills  six 
inches  high  were  placed  in  those  openings.  After  that  tide,  also, 
the  Dagenhani  and  Havering  Commissioners  required  the  frontagers 
in  their  district  to  raise  the  river  wall  to  five  feet  above  Trinity 
high-water  mark. 

Argued  for  the  plaintiffs:  —  The  defendants  were  bound  (over 
and  above  their  specific  obligation  under  their  private  acts)  to  keep 
their  bank  as  high  as  four  feet  above  Trinity  high-water  mark, 
to  take  proper  precautions  to  prevent  any  overflow  which  might 
result  from  any  tide  which  might  reasonably  have  been  expected. 
The  defendants  brought  the  water  there  for  their  own  purposes, 
and  must  keep  it  in  at  their  peril.  Rylands  v.  Fletcher  (p.  23G, 
supra).  They  may  be  excused  if  mischief  results  from  the  act  of 
God.  Nichols  v.  Marsland  (p.  262,  supra).  But  in  the  present 
case  there  is  no  excuse.  A  tide  three  inches  higher  than  a  pre- 
vious one  cannot  lie  called  the  act  of  God.  [Fry,  J.  referred  to 
Rex  v.  The  Commissioners  of  Sewers  for  Jr.  Somerset,  4  I!.  R.  511, 
8  T.  E.  312.]  Persons  who  have  parliamentary  powers  must  still 
use  ordinary  precautions.  Vaughan  v.  Taff  By.  Co.  (1860),  5  H.  & 
N.  679;  29  L.  J.  Ex.  247.  In  Jones  v.  Festiniog  Ry.  Co.  (1868). 
L.  R,  3  Q.  B.  733  :  37  L.  J.  Q.  B.  214,  the  defendants  were  held  liable 
for  damage  done  by  fire  from  their  locomotive,  because  they  had  no 
express  statutory  power  to  use  it.  In  Lawrence  v.  G.  N.  Ry.  Co. 
( 1 851),  16  Q.  B.  643  ;  20  L.  J.  Q.  B.  293,  the  defendant  company  were 
held  liable  for  not  having  done  something  more  (making  flood-open- 
ings) than  they  were  expressly  required  by  their  Act  to  do.  In  the 
present  case  the  defendants,  not  having  done  what  the  Act  required 
them  to  do,  are  thrown  back  on  their  common-law  liability. 

Argued  for  the  defendants:  —  The  precautions  which  have  been 
suggested  would,  by  reason  of  an  act  of  God,  have  been  unavailing 
to  prevent  the  damage.  The  act  of  God  begins  at  that  point  in  the 
operation  of  natural  causes  when  that  happens  which  goes  beyond 
what  any  reasonable  or  prudent  man  might  have  anticipated.    Nichols 


ACCIDENT.  283 


No.  7.  —  Nitro-Phosphate,  &,c.  Co.  v.  London  and  St.  Katharine  Docks  Co. 


■v.  Marsland  (p.  262,  supra).  If  we  are  liable  at  all,  we  are  liable 
only  for  so  much  of  the  damage  as  has  been  occasioned  by  our  fault. 
This  distinction  was  made  in  Workman  v.  G.  N.  Uy.  Go.  (1863),  32 
L.  J.  (Q.  B.)  279.     [Fey,  J.     In  Keighley's  Case,  10  Co.  Rep.  139  a, 

and  in  all  the  other  reported  cases,  so  far  as  I  know,  in  which  the 
act  of  God  has  been  admitted  as  an  excuse,  tlie  defendant  had  him- 
self done  all  that  he  was  bound  to  do.]  On  the  construction  of  our 
Acts  there  is  no  such  hard  and  fast  level  as  four  feet  for  the  entire 
extent  of  the  dock.  The  doctrine  of  Eylands  v.  Fletcher  does  not 
apply,  because  we  are  acting  under  parliamentary  powers. 

FRY,  J.,  after  stating  the  facts  of  the  case,  and  his  conclusion 
^ipon  the  evidence  that  the  damage  caused  to  the  plaintiffs'  prem- 
ises was  caused  exclusively  by  water  which  came  from  the  defen- 
dants' docks,  and  that  on  the  loth  of  November,  1875,  the  crown  of 
the  defendants'  retaining  bank  was  to  a  very  serious  extent  below 
four  feet  above  Trinity  high-water  mark,  continued  :  — 

Now,  that  being  the  state  of  things,  this  question  arises,  Was 
there  or  was  there  not  negligence  on  the  part  of  the  defendants  ? 
The  facts  which  bear  upon  that  question  are  shortly  these  :  Before 
-November,  1875,  the  Pagenham  and  Havering  Commissioners  re- 
squired  the  river  wall  of  the  Thames  to  be  maintained  at  a  level 
of  4  ft.  2  in.  above  Trinity  high-water  mark.  The  openings  in 
the  walls  of  the  Thames  embankments  were  originally  required 
to  be  constructed  at  a  height  of  four  feet  above  Trinity  high-water 
mark.  That  would  rather  imply  that  the  defendants  were  negli- 
•gent  in  leaving  their  bank  below  four  feet.  But  against  that  I  am 
-"bound  to  set  this  fact,  that  from  the  end  of  the  year  1855,  when 
their  docks  were  opened,  down  to  March,  1874,  not  a  drop  of  water 
■had  ever  passed  over  their  bank.  1  should  therefore  have  had 
great  difficulty  in  coming  to  the  conclusion  that  there  was  any 
-common-law  liability  for  negligence  on  the  part  of  the  defendants, 
subject,  however,  to  the  question  whether  the  fact  that  water  did 
Slow  over  the  bank  in  March,  1874,  created  such  a  liability.  It 
Isas  been  argued  for  the  plaintiffs  that  that  fact  was  in  effect 
notice  to  the  defendants  that  they  might  expect  a  tide  as  high 
as  four  feet  to  happen  again,  although  such  an  event  had  never 
been  known  to  have  happened  in  the  history  of  the  world  before 
March,  1874;  and  it  is  said  that,  after  the  tide  had  once  reached 
four  feet,  a  tide  which  reached  that  height  again  could  never  be 
-said  to  be  so  unusual  or  unexpected  as  to  be  deemed  an  act  of 


284  ACCIDENT. 


No.  7.  —  Nitro-Phosphate,  &oc.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

God  in  the  legal  sense  of  the  words.  I  do  not  think  that  view 
is  correct.  I  do  not  think  that  the  mere  fact  that  a  phenome- 
non has  happened  once,  when  it  does  not  carry  with  it  or  import 
any  probability  of  a  recurrence,  —  when,  in  other  words,  it  does 
not  imply  any  law  from  which  its  recurrence  can  be  inferred,  — 
places  that  phenomenon  out  of  the  operation  of  the  rule  of  law 
with  regard  to  the  act  of  God.  In  order  that  the  phenomenon 
should  fall  within  that  rule,  it  is  not,  in  my  opinion,  necessary 
that  it  should  be  unique,  that  it  should  happen  for  the  first  time ; 
it  is  enough  that  it  is  extraordinary,  and  such  as  could  not  reason- 
ably be  anticipated.  That  appears  to  me  to  be  the  view  which  has 
been  taken  in  all  the  cases,  and  notably  by  Lord  Justice  Mellish 
in  the  recent  case  of  Nichols  v.  Marsland,  2  Ex.  J).  5.  He  says, 
speaking  of  the  flood  which  had  occurred  there,  "  The  jury  have 
distinctly  found,  not  only  that  there  was  no  negligence  in  the  con- 
struction or  the  maintenance  of  the  reservoirs,  but  that  the  flood 
was  so  great  that  it  could  not  reasonably  have  been  anticipated, 
although,  if  it  had  been  anticipated,  the  effect  might  have  been 
prevented;  and  this  seems  to  us  in  substance  a  finding  that  the 
escape  of  the  water  was  owing  to  the  act  of  God."  Pausing  there, 
it  may  be  observed  that  to  say  that  a  thing  could  not  reasonably 
have  been  anticipated  is  to  say  that  it  is  the  act  of  God.  He  then 
proceeds :  "  However  great  the  flood  had  been,  if  it  had  not  been 
greater  than  floods  that  had  happened  before  and  might  be  expected 
to  occur  again,  the  defendant  might  not  have  made  out  that  she  was 
free  from  fault."  Therefore,  I  think  that  if  the  case  had  stood  sim- 
ply on  the  common-law  liability  of  the  defendants  for  negligence,  I 
should  have  had  great  difficulty  in  concluding  that  there  was  any 
such  liability,  the  flood  of  November,  1875,  being,  in  my  judgment, 
what,  in  the  contemplation  of  law,  is  called  an  act  of  God. 

But  I  do  not  think  that  this  case  is  to  be  determined  upon  the 
defendants'  common-law  liability,  and  for  this  reason:  The  defen- 
dants did  not  choose  to  rely  on  their  common-law  right  to  use  their 
land  as  they  might  think  fit.  They  chose  to  go  to  Parliament  for 
powers  to  authorize  them  to  some  extent  apparently  to  do  what 
they  might  have  done  without  those  powers.  They  take  a  power 
to  construct  and  to  maintain  a  dock  upon  their  land ;  and,  taking 
that  power  and  acting  upon  it,  they  must,  in  my  judgment,  subject 
themselves  to  the  conditions  which  Parliament  has  imposed  upon 
the  exercise  of  that  power.    They  cannot  afterwards  fall  back  upon 


ACCIDENT.  285 

No.  7.  —  Nitro-Phosphate,  &.c.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

the  question  of  what  was  reasonable  care,  if  Parliament  have  in  any 

particular  respect  laid  down  what  they  are  to  do.  The  question, 
therefore,  which  I  have  to  determine  comes,  in  my  opinion,  to  this  : 
Have  Parliament  laid  down  anything  which  takes  the  place  of  the 
common-law  liability  to  use  reasonable  care  ?  Have  they,  in  short, 
defined  the  height  at  which  the  bank  of  the  dock  is  to  be  main- 
tained ?  If  they  have,  I  do  not  think  that  the  defendants  can  say, 
We  will  be  judged  by  our  own  common-law  liability  or  by  our 
statutory  liability,  as  we  may  think  fit.  To  allow  them  to  do  so 
would  obviously  be  unfair,  for  this  reason,  that  if  they  perform 
their  statutory  obligation  they  are  harmless  in  all  cases,  even  if 
that  liability  is  less  than  the  common-law  liability;  whereas,  if 
they  perform  even  less  than  the  statutory  obligation,  they  might 
contend  that,  if  the  common-law  obligation  reached  to  a  less  ex- 
tent, they  would  be  harmless  also.  I  think  they  must  stand  or 
fall  by  their  statutory  liability.  In  some  cases  this  will  enure  to 
their  benefit,  in  other  cases  it  will  enure  to  their  injury.  But 
whether  it  be  for  or  against  them,  it  becomes,  in  my  opinion,  the 
rule  by  which  their  negligence  or  care  is  to  be  tried.  I  therefore 
turn  to  the  Act  of  1853.  [His  Lordship  referred  to  the  provi- 
sions of  the  Act  and  to  the  deposited  plans  and  sections,  and 
continued  :  — ] 

I  hold,  therefore,  that  the  statute  imposed  on  the  defendant 
company  an  obligation  to  maintain  the  upper  surface  of  the  bank 
which  was  to  retain  the  water  in  their  dock  at  a  level  of  four  feet 
above  Trinity  high-water  mark.  It  is  conceded  that  they  did  not 
so  maintain  it.  The  result,  in  my  opinion,  is,  that  there  has  been 
negligence  on  their  part  in  not  fulfilling  their  statutory  obligation, 
and  that  they  are  responsible  for  that  negligence. 

But  then  it  is  said,  "  That  may  be  so  as  to  part  of  the  overflow, 
but  on  the  morning  of  the  loth  of  November  the  water  rose  five 
inches  above  the  four  feet,  and  we  claim  the  benefit  of  the  pro- 
visions of  the  statute,  and  say  that  we  are  not  liable  for  that  five 
inches,  and,  for  aught  that  appears,  that  five  inches  would  have 
done  as  much  damage  to  the  plaintiffs  as  the  eight  or  ten  inches 
which  flowed  over  by  reason  of  our  bank  being  below  the  level  of 
four  feet."  It  must  be  borne  in  mind  that  I  cannot  ascertain  pre- 
cisely what  the  actual  depth  of  the  water  which  rose  over  the 
defendants'  bank  was,  though  I  have  no  doubt  in  my  own  mind, 
from  the  evidence  before  me,  that,  of  the  entire  depth  of  water 


286  ACCIDENT. 


No.  7.  —  Nitro-Phosphate,  &/C.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

which  passed  over  the  defendants'  bank,  by  far  the  greater  portion 
passed  over  before  the  four  feet  was  reached  by  the  tidal  water- 
The  defendants  say,  "  We  are  exonerated  from  the  five  inches  of 
rise  above  the  four  feet."  How  do  the  plaintiffs  meet  that  ?  They 
say,  "You  are  relying  upon  the  act  of  God;  and  no  man  who  has  a 
duty  cast  upon  him,  and  who  does  not  perform  that  duty,  can 
rely  upon  the  act  of  God  as  any  excuse  at  all.  It  is  a  condition 
precedent  to  pleading  the  act  of  God,  or  getting  the  benefit  of  the 
act  of  God,  that  you  who  seek  the  benefit  of  it  shall  have  done 
everything  which  it  is  your  duty  to  do."  Now,  there  is,  as  it  seems 
to  me,  great  force  in  that  contention,  and  for  this  reason,  that,  if 
the  defendants  had  done  their  duty,  the  exact  experiment  would 
have  been  tried  which  was  requisite  in  order  to  see  what  damage 
would  have  followed  to  the  plaintiffs  from  the  act  of  God. 
Whereas  the  defendants,  by  not  doing  their  duty,  have,  if  they 
are  right,  compelled  the  court  to  try  a  much  more  difficult  ques- 
tion, viz.,  what  would  have  been  the  result  of  the  experiment 
which  they  did  not  choose  to  try.  In  the  one  case  the  question 
would  have  been,  What  has  actually  happened  ?  in  the  other  case 
it  is,  What  would  have  happened  in  a  state  of  circumstances 
different  from  that  which  actually  existed  ?  and  I  need  hardly  say 
that  the  second  is  a  much  more  difficult  question  to  answer  than 
the  first. 

Furthermore,  there  is,  as  it  seems  to  me,  much  authority  in 
favour  of  the  plaintiffs'  view.  Going  back  to  Jfcighlei/s  Case,  10  Co. 
Rep.  139  a.,  where  it  was  held  that  a  rate  might  be  made  upon  the 
whole  of  a  district  for  the  purpose  of  repairing  a  sea-wall  which 
the  frontager  was  liable  to  repair,  it  is  put  in  this  way,  that  "  if 
one  who  is  bound  by  prescription  to  repair  a  wall  contra  Jluxum 
maris,  and  he  keeps  the  wall  in  good  repair,  and  of  such  height, 
and  as  sufficient  as  it  was  accustomed  ;  and  by  the  sudden  and 
unusual  increase  of  water,  salt  or  fresh,  the  walls  are  broken,  or 
the  water  overflows  the  walls,"  then  a  rate  may  be  made  on  the 
whole  district  for  the  repair  of  the  wall ;  that  is  to  say,  that,  if 
the  person  who  is  under  the  obligation  does  his  duty  and  there  is 
nevertheless  an  act  of  God  which  destroys  the  wall,  he  is  not 
liable.  And  again,  in  Nichols  v.  Marsland,  2  Ex.  D.  1,  the  ques- 
tion was  put  to  the  jury  whether  there  had  or  had  not  in  fact  been 
negligence  on  the  part  of  the  defendants.  It  seems  to  me  that 
that  would  have  been  an  improper  question  to  put  to  the  jury  if  it 


ACCIDENT.  287 


No.  7.  —  Nitro-Phosphate,  &c.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

had  been  sufficient  for  the  defendant  to  say,  "  Whether  I  did  or  did 
not  do  my  duty  I  can  rely  on  the  act  of  God." 

However,  it  does  not  appear  to  me  necessary  to  decide  this 
point,  because  I  am  clear  that  a  defendant  cannot  avail  himself  of 
the  act  of  God  as  an  excuse  when  he  has  not  done  his  own  duty, 
except  in  cases  in  which  he  can  make  it  apparent  and  plain  to  the 
court  that,  if  he  had  done  his  duty,  damage  would  still  have  fol- 
lowed to  the  plaintiffs.  Now,  that  burthen  the  defendants  have,  in 
my  opinion,  not  discharged  in  the  present  case.  I  cannot  tell  what 
the  effect  of  the  water  was  before  the  tide  reached  four  feet,  except 
that  I  do  know  that  it  is  in  the  nature  of  running  water  to  make  a 
way  for  itself,  and,  beginning  therefore  to  flow,  it  would  cut  its  own 
channel  and  keep  that  channel  open  as  long  as  there  was  any  supply 
of  water.  I  cannot,  tell  how  far  the  means  which  were  at  the  dis- 
posal of  the  plaintiffs  would  have  been  sufficient  to  keep  out  the 
five  inches  of  water  above  four  feet,  if  it  had  ever  reached  their 
premises.  I  cannot  tell  whether  it  would  have  reached  their  pre- 
mises. Furthermore,  it  is  to  be  borne  in  mind  that  the  evidence 
before  me  is  distinct  that,  during  the  last  two  or  three  inches  of 
rise  of  the  tide,  the  rise  would  have  been  much  more  slow  and 
gradual  than  during  the  earlier  portion  of  the  flow.  Moreover,  the 
flow  would  have  begun  at  a  much  later  period  of  the  night,  and 
the  gangs  of  men  in  the  plaintiffs'  service  were  coming  in  during 
that  time,  so  that  the  plaintiffs  might  have  been  in  a  much  better 
condition  to  meet  the  smaller  influx  of  water.  Therefore,  having 
attended  to  the  best  of  my  ability  to  the  evidence,  I  cannot  say 
that  the  defendants  have  convinced  me  that,  if  they  had  done 
their  duty,  any  damage  whatever  would  have  accrued  to  the 
plaintiffs.  The  case,  therefore,  is  one  in  which,  in  my  opinion, 
negligence  is  brought  home  to  the  defendants,  in  which  I  cannot 
tell  whether  any  portion  of  the  damage  did  or  did  not  result  from 
the  act  of  God,  in  which  the  defendants  have  prevented  me  from 
telling  what  the  effect  of  the  act  of  God  would  have  been  if  they 
had  done  their  duty,  and  in  which  I  cannot  distribute  the  total 
amount  of  damage  between  their  negligence  and  the  act  of  God 
further  than  by  saying  that  they  have  not  convinced  me  that  any 
portion  of  the  damage  which  has  accrued  would  have  accrued  if 
they  had  done  what  they  ought  to  have  done.  I  hold,  therefore, 
that  the  plaintiffs  are  entitled  to  damages. 

It  is  not  disputed  that  the  measure  of  damages  will  be  such  a 


288  ACCIDENT. 


No.  7,  —  Nitro-Phosphate,  &c.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

sum  as  is  requisite  to  restore  the  property  of  the  plaintiffs  to  the 
condition  in  which  it  was  immediately  before  the  flood.  There- 
fore the  judgment  which  I  propose  to  give  is  this :  To  declare 
that  the  defendants  are  liable  to  pay  to  the  plaintiffs  the  damage 
which  resulted  from  the  inundation  of  the  plaintiffs'  works  on 
the  morning  of  the  15th  of  November,  1875,  and  that  the  amount 
necessary  to  restore  the  buildings  and  property  of  the  plaintiffs 
to  the  condition  in  which  they  were  immediately  before  the  inun- 
dation is  the  true  measure  of  damages.  Then  to  refer  it  to  the 
chief  clerk,  to  ascertain  the  amount  and  to  direct  the  defendants 
to  pay  the  amount  certified  within  a  fixed  time  after  the  ceitifi- 
cate.  Then  there  will  be  an  injunction  to  restrain  the  defendants 
from  permitting  the  banks  of  their  Victoria  Dock,  and  the  tidal 
basin  and  entrance  channel  connected  therewith,  to  remain  at  a 
level  lower  than  four  feet  above  the  Trinity  high-water  mark,  so 
as  thereby  to  cause  any  future  overflow  of  water  from  their  dock, 
basin,  or  channel,  or  any  of  them,  into  the  lands  and  works  of  the 
plaintiffs.  And  of  course  the  defendants  must  pay  the  costs  of 
the  action. 

From  this  decision  the  defendants  appealed  to  the  Court  of 
Appeal. 

On  the  argument  of  the  appeal  the  following  cases  were  cited  :  — 
Rylands  v.  Fletcher,  Law  Rep.  3.  H.  L.  330  ;  Nichols  v.  Marsland, 
2  Ex.  J).  1  ;  Withers  v.  North  Kent  Railway  Company,  27  L.  J. 
(Ex.)  417;  Paradine  v.  Jane,  Alleyn,  26;  River  Weir  Commission- 
ers v.  Adamson,  1  Q.  B.  D.  546;  2  App.  Cas.  743;  Worhnan  v. 
Great  Northern.  Railway  Company,  32  L.  J.  (Q.  B.)  279;  Smith  v. 
Fletcher,  Law  Rep.  9  Ex.  64;  Hudson  v.  Tabor,  2  Q.  B.  D.  290; 
Attorney-General  v.  Tewkesbury  and  Great  Malvern  Railway  Com- 
pany, 1  D.  J.  &  S.  433  ;  Reg.  v.  York  and  North  Midland  Railway 
Company,  1  E.  &  B.  178;  Davis  v.  Garrett,  6  Bing.  716;  L'iscoe  v. 
Great  Eastern  Railway  Company,  Law  Rep.  16  Eq.  636;  Coc  v. 
Wise,  Ibid.  1  Q.  B.  711. 

At  the  conclusion  of  the  argument, 

James,  L.  J.,  said  :  — 

We  are  all  of  opinion  that  Mr.  Justice  Fry's  judgment  must  be 
affirmed,  with  a  variation  omitting  the  declaration  that  the  whole 
of  the  damage  was  due  to  the  wrongful  act  of  the  defendants,  and 
that  they  were  liable  to  make  good  the  whole  of  it.  But  as  some 
important  questions  are  involved,  on  which  we  wish   to  give  an 


ACCIDENT.  289 


No.  7.  —  Nitro-Phosphate,  &c.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

opinion,  we  will  take  time  before  we  state  the  grounds  on  which 
we  proceed. 

On  a  subsequent  day,  James,  L.  J.,  delivered  the  judgment  of  the 
Court  (James,  Brett,  and  Cotton,  L.  JJ.),  as  follows:  — 

We  intimated  at  the  close  of  the  arguments  that  the  judgment 
of  the  learned  Judge  from  whom  this  appeal  is  brought  would  be 
affirmed  with  a  variation  not  substantially  affecting  the  merits  of 
the  appeal,  and  not,  therefore,  affecting  the  rights  of  the  respon- 
dents to  the  costs  of  the  appeal,  which  will  be  given  to  them. 

The  works  of  the  plaintiffs  were  inundated  by  a  high  tide  which 
came  over  a  low  part  of  the  retaining  banks  of  a  channel  leading 
to  the  docks  of  the  defendants,  and  the  learned  Judge  arrived  at 
the  conclusion  that  the  inundation  of  the  plaintiffs'  works  was  due 
to  the  neglect  and  default  of  the  defendants  in  not  having  main- 
tained a  proper  and  sufficient  barrier  against  the  influx  of  the  tidal 
flood. 

A  great  deal  of  the  argument  before  the  court  below  and  in  this 
court  turned  upon  the  cpuestion  whether  there  was  any  statutory 
obligation  to  make  and  maintain  the  banks  at  any  prescribed 
height.  The  Acts  of  Parliament  under  which  the  docks  were  con- 
structed referred  to  certain  deposited  plans  and  sections  showing 
the  position  and  levels  of  the  works  authorized  to  be  made.  The 
first  Act  referred  to  them  as  the  plans  according  to  which  it  was  in- 
tended to  construct  the  docks  and  other  works,  but  did  not  contain 
any  express  enactment  that  they  should  be  made  accordingly  ; 
but  the  company  having  occasion  to  go  again  to  Parliament,  the 
omission  (if  it  were  practically  an  omission)  wras  remedied  by  an 
express  enactment  in  the  second  Act  (22nd  section),  that  it  should 
be  lawful  for  the  company  to  continue,  make,  complete,  and 
maintain  the  dock  and  works  in  the  situation  and  upon  the 
lands,  &c,  and  according  to  the  levels  defined  on  the  sections 
so  deposited.  The  contention  before  us  was  that  no  such  levels 
could  be  found  so  deposited,  and  two  witnesses  had  in  fact  de- 
posed that  the  plans  were  so  inaccurate  or  defective  that  they 
could  not  find  any  such  levels.  The  learned  Judge,  however,  found 
no  difficulty  in  discovering  such  levels;  and  upon  a  careful  exami- 
nation of  the  plans  we  agree  with  him  that  such  levels  are  described 
sufficiently  and  clearly  for  any  person  really  desirous  to  find  in 
the  plans  what  the  Act  of  Parliament  said  was  to  be  found  there. 

VOL.    T.  —  ID 


290  ACCIDENT. 


No.  7.  — Nitro-Phosphate,  .&/C.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

That  is  to  say,  there  is  on  the  plan  a  section  running  through  the 
centre  of  the  proposed  works,  which  shows  a  line  said  to  be  a 
line  corresponding  with  the  upper  surface  of  the  banks,  and  which 
shows  that  this  line  was  to  be  four  feet  above  Trinity  high-water 
mark  ;  and  the  cross  sections  show  the  banks  of  the  dock  at  a  level 
really  corresponding  with  this  line.  There  was  therefore  a  statu- 
tory direction  that  the  banks  were  to  be  four  feet  above  the 
Trinity  high-water  mark.  It  was  not  contended  by  the  counsel 
for  the  appellants  that  if  that  wras  so  there  was  not  a  statutory 
obligation  to  make  and  maintain  retaining  banks  or  walls  of  that 
height.  The  words  of  the  Act  are  that  it  should  be  lawful  for  the 
company,  to  make  their  works  according  to  those  levels,  and  of 
course  it  was  optional  with  them  to  make  or  not  to  make  their 
works  at  all.  But  if  they  made  them,  and  not  to  those  levels, 
they  would  be  in  this  dilemma:  Either  from  the  neglect  of  that 
provision  or  condition  the  whole  works  were  illegal,  or  the  pro- 
vision as  to  levels,  ought  to  be  construed  as  imposing  a  distinct  and 
separate  obligation  to  that  effect,  the  breach  of  which  would  not 
invalidate  all  their  acts  and  proceedings,  but  would  have  to  ba 
remedied  or  punished  like  any  other  breach  of  statutory  obligation. 
Of  course  the  company  would  prefer  their  liability  under  tin- 
latter  construction  to  their  liability  to  capital  punishment,  which 
would  be  the  consequence  of  the  former  ;  and  we  prefer  that  con- 
struction. It  was,  however,  with  great  energy  and  confidence,  in- 
sisted before  us  that  the  liability  was  destroyed  by  the  repeal  of 
the  Act  which  contained  that  section.  That  Act  was  repealed 
under  the  following  circumstances  :  There  were  three  dock  com- 
panies, the  Victoria,  the  London,  and  the  St.  Katharine,  who  applied 
to  Parliament  to  authorize  the  two  latter  to  be  amalgamated  and 
to  absorb  the  first ;  and  to  give  effect  to  that  arrangement,  a  new 
Act  was  passed  repealing  the  existing  Acts  of  the  three  companies, 
and  providing  for  the  creation  of  the  powers  and  liabilities  of  the 
new  company,  the  present  defendants.  There  was  this  peculiarity 
in  the  composition  of  the  new  Act,  that  although  it  repealed  all 
the  old  Acts,  it  purported  to  continue  in  a  schedule  certain  clauses, 
and  among  those  clauses  was  not  the  22nd  section  of  the  Act  of 
1853;  and  it  was  very  strongly  urged  upon  us  that  this  very 
peculiar  style  of  legislation  operated  as  a  very  special  and  peculiar 
repeal  of  everything  in  the  22nd  section  so  as  to  preclude  the  effect 
of  the  92nd  section  of  the  amalgamating  Act,  which  provides  that 


ACCIDENT.  291 


No.  7.  —  Nitro-Phosphate,  &-c.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

the  new  company  shall  maintain,  work,  and  use  the  three  docks 
respectively  subject  to  all  statutory  duties,  obligations,  and  liabili- 
ties to  which  the  three  companies  respectively  immediately  before 
the  commencement  of  the  amalgamating  Act  were,  or,  but  for  it, 
would  become  subject  in  respect  of  the  three  docks  respectively. 
That  contention  is  wholly  inadmissible.  When  companies  come 
to  Parliament  for  an  amalgamation  for  their  own  convenience,  it 
would  require  very  clear  words  indeed  to  induce  the  court  to 
conclude  that  they  had  contrived  to  slip  in  anything  to  destroy 
any  existing  liability  in  themselves  or  any  existing  right  in  any 
one  else.  And  the  92nd  section  is,  in  fact,  what  one  always 
expects  to  find  and  does  find  in  all  these  Acts  sanctioning  private 
arrangements  between  existing  companies  ;  and  there  is  really  no 
doubt  whatever  as  to  the  construction  of  the  provision  repealing 
the  22nd  section  of  the  old  Act,  and  the  92nd  section,  taken 
together.  The  22nd  section  is  repealed  as  to  powers,  because  the 
company  itself  is  to  go,  and  the  powers  of  the  amalgamated  or  new- 
company  are  otherwise  defined ;  but  it  is  continued  as  to  liability, 
except  that  such  liability  is  transferred  to  such  new  company. 
We  agree  with  the  Court  below,  therefore,  that  the  company  was 
clearly  under  a  statutory  liability  to  maintain  their  banks  up  to 
the  four  feet  level. 

But,  although  we  have  thought  it  right  to  go  fully  into  the 
whole  of  this  case  as  to  statutory  liability,  having  regard  to  the 
fact  that  it  was  made  the  foundation  of  the  judgment  appealed 
from,  and  that  it  constituted  by  far  the  greater  part  of  the  case 
argued  before  us.  yet,  in  the  view  we  take  of  the  case,  it  is  really 
immaterial ;  for  if  there  were  no  such  statutory  liability,  there  is 
another  and  more  extensive  liability  on  the  defendants.  There  is 
nothing  in  the  Act,  either  expressly  or  by  implication,  to  affect 
the  ordinary  liability  of  the  company  as  riverain  proprietors  who 
intermeddle  with  an  existing  river  wall.  They  were  authorized 
to  take  land  and  make  works  on  the  banks  of  the  river,  and  what 
they  did  was  to  excavate  a  great  bell-mouthed  bay  in  the  channel 
of  the  river,  and  to  make  a  channel,  or  cut,  from  that  bay  into 
their  dock,  which  is  some  distance  back  from  the  river,  and  in  the 
execution  of  those  works  to  destroy  the  existing  river  wall.  They 
became  landowners  frontagers  on  the  river,  interfering  with  the 
wall  rightfully  insisted  on  by  the  Commissioners  of  Sewers,  and  as 
such  they  were  as   much   liable  to   have   and  maintain  a  proper 


292  ACCIDENT. 


No.  7.  —  Nitro-Phosphate,  &c.  Co.  v.  London  and  St.  Katharine  Docks  Co. 


river  wall  as  any  other  of  the  landowners  frontagers  there.  If 
they  had  merely  made  the  bell-mouthed  bay,  no  one  could  have 
doubted  that  it  was  their  duty  to  have  and  maintain  a  river  wall 
around  the  curve,  just  as  it  was  to  have  and  maintain  one  across 
the  chord  of  that  curve.  But  they  do  not  maintain  such  a  wall 
around  the  curve  if  there  is  any  opening  in  it.  An  inclosure  or 
defence  not  continuous  is  no  inclosure  or  defence  at  all.  They 
were  bound  to  have  a  river  wall,  and  that  wall  a  continuous  one  ; 
and,  therefore,  the  whole  wall  or  bank,  from  the  extreme  point  at 
one  end  of  the  bay,  along  one  side  of  the  defendants'  works  round 
the  docks,  and  back  to  the  extreme  point  at  the  other  end  of  the 
bay,  was  and  is  the  river  wall  which  it  is  their  duty  to  have  and 
maintain.  If  the  gates  which  are  across  what  is  called  the  lock 
had  been  closed  to  the  inflowing  tide,  that  would  have  completed 
the  wall  at  that  place;  but  they  were  constructed  so  as  to  open 
to  such  tide.  In  fact,  the  defendants'  works,  being  all  open  to 
the  tide,  and  the  water  in  them  at  high  tide  being  part  of  the 
same  sheet  or  body  of  water  as  that  of  the  mid-channel,  the  bell- 
mouthed  bay,  the  lock,  the  cut,  the  docks  constitute,  in  fact,  a  bay 
and  creek  of  the  river  as  much  as  any  natural  bay,  creek,  or  other 
widening  or  opening  to  be  found  along  the  course  of  it.  The 
whole  of  this  wall  or  bank  was,  therefore,  a  river  wall  or  bank 
subject  to  the  like  liabilities  and  jurisdiction  as  any  other  part 
of  the  river  wall.  The  defendants  themselves  called  the  officer  of 
the  proper  commissioners  to  prove  that  the  standard  appointed 
for  the  river  wall  had  been,  in  November,  1875,  and  for  thirty 
years  previously,  to  his  certain  knowledge,  4  ft.  2  in.  above  Trinity 
hidi-water  mark.  And  it  was  the  plain  duty  of  the  defendants, 
as  riverain  proprietors,  to  have  and  maintain  a  wall  of  that  height. 
But  even  if  the  defendants  had  succeeded  in  establishing  that 
they  were  not  under  any  statutory  or  special  liability,  but  only 
under  the  common-law  liability,  to  take,  proper  and  sufficient  pre- 
cautions, it  would  not,  in  our  opinion,  make  any  substantial  dis- 
tinction in  their  favour.  In  judging  the  question  of  fact  whether 
they  had  taken  proper  and  sufficient  precautions,  all  the  surround- 
ing circumstances  must  be  taken  into  consideration,  and,  in  our 
judgment,  it  would  be  far  from  sufficient  for  them  to  show  that 
they  had  taken  the  precautions  sufficient  according  'to  a  table  of 
tides  for  forty  years.  If  there  had  been  nothing  else,  that  possibly 
might  have  excused  them  ;  but  they  ought  to  have  set  against 


ACCIDENT.  29! 


No.  7.  —  Nitro-Phosphate,  &,c.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

that  the  judgment  of  the  commissioners,  based  on  the  experience 
and  tradition  of  centuries,  which  had  fixed  4  ft.  2  in.  as  the  height. 
And  we  now  know  that,  although  up  to  1874,  for  forty-one  veins 
there  had  been  no  tide  higher  than  3  ft.  9  in.  at  the  Shadwell  Dock 
(which  is  said  to  be  3  inches  higher  than  the  Victoria),  there  were, 
in  1S74,  1875,  and  1877  tides  of  4  ft.  3  in.,  4  ft.  6^  in.  (the  one  in 
question),  and  4  feet.  The  great  probability  is  that  the  com- 
missioners had  previously  experienced  similar  tides,  and  had  fixed 
4  ft.  2  in.  accordingly ;  and  if  in  a  matter  connected  with  the 
inundation  of  a  whole  district  a  landower  prefers  his  own  deduc- 
tion  from  the  experience  of  a  few  years  (not  even  exhausting  living 
memory)  to  the  deliberate  judgment  of  the  constituted  authorities, 
whose  official  experience  and  traditions  must,  as  I  have  said,  date 
from  centuries  back,  he  does  it  at  his  peril,  and  he  cannot,  in  my 
judgment,  be  said  to  have  taken  and  used  every  precaution  and 
care  reasonably  to  be  expected  from  him  under  the  circumstances. 
To  what  I  have  said  is  to  be  added  that  the  company's  own 
engineer,  before  they  began  their  works,  had  fixed  4  feet  as  the 
limit.  And,  if  there  had  been  any  shadow  of  excuse  for  them 
before,  it  was,  in  my  judgment,  wholly  and  most  culpably  inex- 
cusable in  the  defendants  not  to  have  accepted  the  warning  of  the 
tide  of  1874,  as  to  which  it  is  not  suggested  that  it  was  due  to 
any  earthquake  or  other  convulsion  of  nature,  or  to  anything  else 
than  a  peculiar  combination  of  those  causes  which  make  some 
tides  higher  than  others,  and  which  might,  therefore,  be  expected 
again  to  occur.  It  would  be  difficult,  therefore,  to  fix  even  the 
common-law  liability  at  less  than  4  feet. 

The  learned  Judge  was,  therefore,  clearly  right  in  holding  that 
the  defendants  had  been  guilty  of  neglect  and  breach  of  duty,  and 
making  the  consequential  decree  against  them.  But  there  was 
one  matter  which  may  possibly,  and  very  probably,  turn  out  to  be 
a  mere  matter  of  form,  on  which  we  intimated  that  we  did  not 
agree  with  him.  He  made  a  declaration  that  the  whole  damages 
sustained  by  the  plaintiffs  was  due  to  the  defendants'  wrong. 
And  that  arises  in  this  way :  Assuming  the  liability  to  be  to 
maintain  the  wall  at  4  feet,  as  the  Judge  thought,  or  at  4  ft.  2  in., 
as  we  think,  the  tide  is  said  to  be  have  been  4  ft.  5  in.,  although  it  is 
not  very  easy  to  reconcile  that  with  the  height  of  4  ft.  6|  in.  at 
the  Shadwell  Dock.  But  it  must,  for  the  present  purpose  and  on 
the  present  occasion,  be  assumed  to  have  been  4  ft.  5   in.,  and, 


294  ACCIDENT. 


No.  7.  —  Nitro-Phosphate,  &-c.  Co.  v.  London  and  St.  Katharine  Docks  Co. 

therefore,  there  was  a  tide  considerably  higher  than  that  which 
would  have  been  kept  out  by  the  walls  of  the  defendants  if  they 
had  strictly  and  fully  done  all  that  was  incumbent  on  them  to  do. 
Upon  this,  it  was  contended  by  the  defendants  that,  as  they  were 
not  bound  to  keep  out  a  4  ft.  5  in.  tide,  the  plaintiffs  would  have 
been  equally  flooded  by  that  abnormal  tide;  and  therefore  no 
damage  really  arose  from  the  defendants'  neglect.  But  this 
argument  does  not  seem  to  us  to  be  correct.  Suppose  that  the 
same  damage  would  have  been'  done  bv  the  excess  of  height  of 
tide  if  the  wall  had  been  of  due  height,  as  has  been  done  ;  yet,  if 
the  damage  has  been  done  by  reason  of  the  wall  not  being  of  due 
height,  the  defendants  are  liable  for  that  damage  arising  from 
that  cause,  and  are  not  excused  because  they  would  not  have  been 
liable  for  similar  damage  if  it  had  been  the  result  solely  of  some 
other  cause.  And,  moreover,  long  before  the  tide  rose  even  to 
4  feet,  it  began  to  flow  over  towards  and  into  the  plaintiff's'  works; 
and,  of  course,  the  defendants  cannot  escape  their  liability  for  the 
damage  so  occasioned  because  the  tide  afterwards  went  on  swelling 
and  swelling,  even  if  it  could  be  shown  that  the  same  damage 
would  have  been  occasioned  by  that  additional  height  of  water  if 
the  banks  of  the  defendants  had  been  in  proper  condition.  They 
had  been  guilty  of  neglect,  and  had  done  damage  before  that 
extra  height  had  been  reached,  and  their  liability  to  the  plaintiffs 
was  complete  when  the  damage  was  done. 

But,  however,  it  was  further  suggested  that  the  whole  damage, 
was  not  due  to  the  defendants'  neglect,  and  that,  as  there  was  a 
tide  supposed  to  be  4  ft.  5  in.,  that  tide  might  have  occasioned, 
and  it  is  contended  by  the  defendants  that  it  did  occasion,  a  sub- 
stantial and  ascertainable  portion  of  the  plaintiffs'  damage.  No 
doubt,  if  the  court  can  see  on  the  whole  evidence  that  there  was  a 
substantial  and  ascertainable  portion  of  the  damage  fairly  to  be 
attributed  solely  to  the  excess  of  the  tide  above  the  proper  height 
which  it  was  the  duty  of  the  defendants  to  maintain,  occurring 
niter  the  excess  had  occurred,  and  which  would  have  happened  if 
the  defendants  had  done  their  duty,  then  there  ought  to  be  a 
proper  deduction  in  that  respect.  If  I  were  to  judge  upon  the 
evidence  as  it  stands,  supposing  nothing  to  be  shaken  and  nothing 
to  be  altered  or  controverted  by  new  evidence,  I  should  have  no 
hesitation  in  agreeing  with  Mr.  Justice  Fry  as  to  this.  Having 
regard  to  the  time  at  which  it  is  alleged  that  the  water  burst  over 


ACCIDENT.  295 


No.  7.  —  Nitro-Phosphate,  &>c.  Co.  v.  London  and  St.  Katharine  Docks  Co.  —  Notes. 

in  a  cataract  and  overcame  the  efforts  of  the  plaintiffs  to  barri- 
cade the  openings  into  their  works,  and  to  what  they  did  in  1874, 
and  what  they  might  have  done  in  1875  if  they  had  had  more 
time  to  prepare  and  only  a  few  inches'  height  of  water  to  deal 
with,  and  the  immense  difference  there  is  between  the  tide  rising 
equally  over  the  whole  length  of  the  river  wall  and  distributing 
itself  impartially  over  the  whole  district,  and  the  tide  finding  a 
very  weak  part,  a  great  depression  and  opening,  immediately  over 
the  plain  lift's'  property,  —  I  say,  having  regard  to  all  those  things, 
the  defendants  have  a  very  difficult  task  to  show  that  any  portion 
of  the  da  magi-  was  not  due  to  their  neglect.  But  the  difficulty  in 
the  way  of  sustaining  the  declaration  on  that  subject  is  this  :  that 
that  question  does  not  appear  to  have  been  sufficiently  in  issue  qr 
tried  at  the  hearing  of  the  cause.  It  was  very  early  assumed  that 
the  amount  of  damage  would  be  a  matter  of  reference;  and  it  does 
not  appear  that  the  question  whether,  on  any  ground  or  any 
principle,  some  deduction  ought  or  ought  not  to  be  made  from  the 
damage,  was  really  gone  into.  Indeed,  until  the  question  of 
liability  was  ascertained,  and  the  extent  of  that  liability,  —  whether 
the  limit  was  3  ft.  8  in.,  as  the  defendants  have  contended,  and 
whether  they  had  failed  even  to  satisfy  that  limit,  as  the  plaintiffs 
contended,  or  4  feet,  or  more  than  4  feet,  —  it  was  practically  im- 
possible for  the  defendants  to  direct  their  cross-examination  or 
examination  in  chief  to  the  question  whether  any,  and,  if  any, 
what  damage  was  due  to  the  excess  of  the  tide  above  that  limit. 
The  judgment  and  decree  of  the  Judge  will,  therefore,  be  affirmed 
with  a  variation,  —  omitting  the  declaration  to  which  I  have 
referred.     The  appellants  must  pay  the  costs  of  the  appeal. 

ENGLISH   N(  >TES. 

In  the  action  of  Burt  v.  Victoria  Graving  I>n<-k  Company  (Ch.  I). 
1882),  47  L.  T.  378,  there  was  a  flood  from  a  .similar  cause  to  that  in 
the  principal  case.  There  was  no  attempt  to  re-open  the  question  de- 
cided by  the  Court  of  Appeal.  The  only  question  argued  was  as  to  the 
liability  of  the  lessors,  the  St.  Katherine  Dock  Company,  who  had 
leased  the  premises  for  the  express  purpose  of  making  the  cutting 
which  was  actually  made  in  the  natural  riparian  defences;  and  it  was 
held  that  they  were  liable,  just  as  if  they  had  employed  a  contractor 
for  the  purpose. 

Dixon  v.  Metropolitan   B<>«nl  of  Works  (1881),  7  Q.  B.   I>.  418,  50 


296  ACCIDENT. 


No.  8.  —  Vaughan  v.  Taf f  Vale  Railway  Co.  —  Eule. 


L.  J.  Q.  B.  772,  was  an  action  for  damage  caused  by  the  rush  of  water  on 
the  opening  of  the  water-gates  at  Deptford  Creek, — the  outfall  of  the 
defendants'  sewage  system.  The  sewer  was  properly  constructed  under 
the  powers  of  the  Acts.  It  was  the  duty  of  the  man  in  charge  of  the 
water-gates  to  open  them  when  the  water  immediately  above  rises  to  a 
height  showing  a  depth  of  eight  feet,  — a  height  attained  only  in  heavy 
rainfalls.  This  having  been  done,  and  the  rain  continuing  with  in- 
creased volume,  the  rush  of  water  became  such  as  to  do  the  mischief  com- 
plained of.  It  was  held  that  the  mischief  was  caused  not  by  the  act  of 
God,  but  by  the  opening  of  the  gates;  but  that,  the  mischief  being  the 
inevitable  result  of  what  Parliament  had  authorised  the  defendants  to  do, 
they  were  not  liable.  It  is  clear  from  this  decision,  that,  if  the  acts  in 
question  had  been  done  without  statutory  powers,  the  defendants  would 
have  been  liable  for  the  damage  done  by  the  opening  of  the  gates,  even 
if  the  rainfall  had  been  so  great  as  to  constitute  a  case  of  vis  major. 


No.  8. —VAUGHAN   v.    TAFF   VALE   RY.    CO. 
(exch.  ch.  from  exch.  1860.) 

RULE. 

Persons  associated  or  incorporated  for  public  purposes 
with  statutory  powers,  are,  in  the  absence  of  statutory 
provisions  as  to  their  liability,  not  responsible  for  acci- 
dents occurring  through  the  use  of  their  statutory  powers 
in  a  manner  necessary  for  carrying  out  the  public  pur- 
poses, —  provided  they  have  taken  every  precaution,  and 
adopted  every  means  in  their  power,  to  prevent  damage. 

Vaughan  v.  Taff  Vale  Ry.  Co. 

5  H.  &  N.  679 ;  29  L.  J.  Ex.  247. 

This  was  an  appeal  in  the  Exchequer  Chamber  by  the  defendants 
against  the  judgment  of  the  Court  of  Exchequer  in  discharging  a 
rule  for  a  new  trial. 

The  case  stated  on  appeal  was  as  follows :  The  defendants  are 
a  company,  who,  under  their  special  Acts  and  the  General  Railway 
Acts  incorporated  therewith,  are  proprietors  of,  and  use  and  work, 
the  Taff  Vale  Eailway  with  locomotive  engines  as  a  passenger  and 


ACCIDENT.  297 


No.  8.  —  Vaughan  v.  Taff  Vale  Railway  Co. 


goods  line!*"  The  plaintiff  is  the  owner  of  a  wood  or  plantation 
adjoining  the  embankment  of  the  railway.  On  the  14th  March, 
1856,  the  plaintiff's  wood  was  discovered  to  be  on  fire,  and  eight 

acres  of  it  were  burnt.  The  fire  may  be  taken  to  have  originated 
from  a  spark  or  coal  from  one  of  the  defendant's  locomotive  en- 
gines in  the  ordinary  course  of  its  working.  This  action  was 
brought  by  the  plaintiff  for  the  damage  he  sustained  by  the  fire. 

From  the  evidence  of  the  plaintiff'  and  his  witnesses,  it  appeared 
that  the  fire  in  the  plaintiff's  wood  was  first  seen  at  a  place  fifty 
yards  from  the  railway  ;  that  there  were  traces  of  fire  extending 
continuously  all  the  way  between  the  railway  and  the  wood,  and 
that  the  railway  bank  was  burning;  that  the  grass  on  the  bank 
had  been  cat  three  or  four  months  before,  but  that  there  was  grass 
of  a  very  combustible  nature  growing  on  the  bank  just  previous  to 
the  fire,  and  that  it  was  all  burned  ;  that  there  was  a  great  deal  of 
long  grass  growing  in  the  wood,  which  was  extremely  combustible; 
that  the  wood  was  also  full  of  small  dry  branches,  the  remains  of  a 
former  cutting,  and  was  described,  by  the  plaintiff,  to  be  in 'just 
about  as  safe  a  state  as  an  open  barrel  of  gunpowder  would  be  in 
the  Cyfarthfa  rolling-mill. 

The  wood,  however,  was  in  an  ordinary  and  natural  condition, 
and  as  it  had  been  before  and  since  the  railway  was  made. 
Whether  the  injury  was  caused  by  the  grass  on  the  embankment 
being  first  set  fire  to,  or  whether  by  lighted  matter  being  thrown 
from  the  locomotive  on  to  the  plaintiff's  land,  was  not  left  to  or 
determined  by  the  jury.  The  defendant's  counsel  did  not  at  the 
trial  make  any  objection  on  this  ground. 

On  the  part  of  the  defendants  it  was  sworn  that  everything 
which  was  practicable  had  been  clone  to  the  locomotive  to  make 
it  safe  :  that  a  cap  had  been  put  to  its  chimney  ;  that  its  ash- 
pan  had  been  secured;  that  it  travelled  at  the  slowest  pace  con- 
sistent with  practical  utility,  and  that  if  its  funnel  had  been  more 
guarded  or  its  ashpan  less  free,  or  its  pace  slower,  it  could  not  have 
been  advantageously  used;  and  it  must  be  taken  to  be  the  fact 
that  the  defendants  had  taken  every  precaution  and  adopted  even- 
means  in  their  power,  and  which  science  could  suggest,  to  prevent 
their  engines  from  emitting  sparks,  but  the  witness  added,  -'we  do 
occasionally  burn  our  own  banks  now." 

The  learned  Judge  left  the  question  of  negligence  and  improper 
conduct  by  the  defendants  to  tiie  jury,  saying  there  was  evidence 


298  ACCIDENT. 


No.  8.  —  Vaughan  v.  Taf f  Vale  Railway  Co. 


thereof,  even  though  the  jury  believe  the  evidence  that  every- 
thing which  was  practicable  had  been  done  to  the  locomotive  to 
render  it  safe,  and  though  it  travelled  at  the  slowest  pace  consis- 
tent with  practical  utility.  He  refused  to  leave  to  the  jury  any 
question  arising  out  of  the  combustible  character  of  the  plaintiff's 
wood.  The  jury  returned  a  general  verdict  for  the  plaintiff,  the 
damages  being  agreed  upon  at  £27  10s. 

The  Judge  did  not  direct  the  jury,  as  stated  in  the  rule  of  the 
Court  of  Exchequer,  "  that  no  care  or  skill  used  in  preventing  the 
escape  of  fire  from  the  engine  would  be  an  answer  to  the  charge 
of  negligence,  provided  the  defendants  did  not  succeed  in  pre- 
venting it,"  hut  left  the  question  of  negligence  and  improper  con- 
duct as  above.  The  question  whether  there  was  evidence  as  to 
both  or  either  count  was  entertained  and  dealt  with  by  the  Court 
of  Exchequer  as  though  open  to  the  defendants  on  the  rule,  and 
without  requiring  any  amendment  thereof. 

The  question  for  the  decision  of  the  Court  of  Appeal  is, 
whefher  or  not  the  defendants  are  entitled  to  have  a  new  trial  on 
the  ground  that  there  was  no  evidence  of  negligence  to  go  to  the 
jury  under  the  first  count  of  the  declaration,  assuming  it  was  true, 
as  sworn,  that  everything  had  been  done,  &c.  ;  the  plaintiff  con- 
tending that  there  was  such  evidence,  and  also  that,  if  not,  the 
question  is  not  open  to  the  defendants,  and  also  that  the  Judge 
was  wrong  in  not  leaving  to  the  jury  any  question  arising  out  of 
the  combustible  character  of  the  plaintiff's  wood. 

If  the  court  shall  be  of  opinion  in  the  affirmative,  then  the  ver- 
dict for  the  plaintiff  is  to  be  set  aside  and  a  new  trial  had.  If  the 
court  shall  be  of  opinion  in  the  negative,  then  the  verdict  for  the 
plaintiff  is  to  stand,  and  judgment  to  be  entered  for  £27  10s. 
damages. 

The  case  having  been  argued,  the  court  pronounced  judgment  as 
follows :  — 

Cockburx,  C.  J.  We  are  all  of  opinion  that  the  decision  of  the 
Court  of  Exchequer  cannot  be  upheld,  and  that  the  case  must  go 
down  for  a  new  trial.  I  collect,  from  the  reasons  given  by  my 
brother  Bramwell  in  delivering  the  judgment  of  the  Court  of 
Exchequer,  that  the  ground  upon  which  that  court  discharged 
the  rule  was  this:  Whereas  accidents  occasionally  arise  from 
the  use  of  fire  as  a  means  of  propelling  locomotive  engines  on 
railways,  the  happening  of  such  accidents  must  be  taken   to  be  a 


A.CCIDENT.  299 


No.  8.  —  Vaughan  v.  Taff  Vale  Railway  Co. 


natural  and-  necessary  incident  to  the  use  of  fire  for  that  purpose, 
and,  therefore,  railway  companies,  by  using  fire,  are  responsible  for 
any  accident  which  may  result  from  its  use,  although  they  have 
taken  every  precaution  in  their  power.  So  far  as  I  can  gather  from 
the  language  of  the  judgment,  that  is  the  view  taken  by  the  court 
of  the  law  applicable  to  the  first  count.  I  cannot  adopt  that  view  : 
it  is  at  variance  with  the  principle  on  which  the  Court  of  Queen's 
Bench  proceeded  in  the  case  of  Rex,  v.  Pease,  4  B.  &  Ad.  30,  which 
we  are  prepared  to  uphold.  Although  it  may  be  true,  that  if  a  per- 
son keeps  an  animal  of  known  dangerous  propensities,  or  a  danger- 
ous instrument,  lie  will  be  responsible  to  those  who  are  thereby 
injured,  independently  of  any  negligence  in  the  mode  of  dealing 
with  the  animal  or  using  the  instrument  ;  yet,  when  the  legislature 
has  sanctioned  and  authorised  the  use  of  a  particular  thing,  and  it  is 
used  for  the  purpose  for  which  it  was  authorized,  and  every  pre- 
caution has  been  observed  to  prevent  injury,  the  sanction  of  the 
legislature  carries  with  it  this  consequence,  that  if  damage  results 
from  the  use  of  such  thing,  independently  of  negligence,  the  party 
using  it  is  not  responsible.  It  is  consistent  with  policy  and  jus- 
tice that  it  should  be  so;  and  for  this  reason,  so  far  as  regards  the 
first  count,  I  think  the  judgment  of  the  court  below  is  wrong.  It 
is  admitted  that  the  defendants  used  fire  for  the  purpose  of  pro- 
pelling locomotive  engines,  and  no  doubt  they  were  bound  to  take 
proper  precaution  to  prevent  injury  to  persons  through  whose  lands 
they  passed  ;  but  the  mere  use  of  fire  in  such  engines  does  not 
make  them  liable  for  injury  resulting  from  such  use  without  any 
negligence  on  their  part. 

As  regards  the  second  count,  if  the  facts  alleged  in  that  count 
had  been  established  by  the  verdict  of  the  jury,  the  defendants 
would  have  been  liable  ;  but  in  as  much  as  the  learned  Judge,  in 
substance,  told  the  jury  that  (independently  of  the  facts  alleged  in 
the  second  count)  if  they  were  satisfied  that  the  accident  arose 
from  the  use  of  fire,  the  defendants  were  responsible,  there  is 
nothing  from  which  we  may  not  suppose  that  the  jury  found  their 
verdict  upon  the  first  count  only.  Indeed,  the  questions  raised  for 
our  determination  tend  to  show  that  in  the  opinion  of  the  learned 
Judge,  the  counsel,  and  all  parties,  the  verdict  proceeded  on  the  first 
count;  and,  therefore,  the  question  of  negligence  under  the  second 
count  was  improperly  withdrawn  from  the  jury.  It  may  be  that 
the  plaintiff  is  entitled  to  succeed  on  that  count,  or  it  may  be  that 


300  ACCIDENT. 


No.  8.  —  Vaug-han  v.  Taff  Vale  Railway  Co. 


the  mischief  arose  from  the  sparks  not  being  carried  to  the  bank, 
but  directly  to  the  wood,  which  was  of  a  combustible  nature  ;  in 
which  case  the  defendants  would  not  be  liable.  For  these  reasons 
I  am  of  opinion  that  there  ought  to  be  a  new  trial. 

Williams,  J.  I  am  of  the  same  opinion.  We  cannot  confirm 
the  decision  of  the  Court  of  Exchequer  without  affirming  that  the 
defendants  are  liable  for  accidents  caused  by  the  use  of  locomotive 
engines,  although  they  were  guilty  of  no  negligence  and  took  every 
precaution  to  guard  against  accident.  Bex  v.  Pease  shows  that 
such  is  not  the  law. 

Crompton,  J.  I  am  of  the  same  opinion.  It  seems  to  me  that 
there  was  no  evidence  of  negligence  to  support  the  first  count.  It 
is  found  that  the  defendants  took  all  practicable  precautions  that 
science  could  suggest  to  prevent  accident.  That  is  substantially  a 
finding  that  there  was  no  negligence  as  regards  the  first  count. 
The  jury  may  have  thought  that  there  was  no  negligence  to  sup- 
port the  second  count,  and  may  have  proceeded  upon  the  ground 
that  the  defendants  were  liable  under  the  first  count  without 
actual  negligence.  Rex  v.  Pcei.se  decides  this  matter,  for  it  shows 
that  although  the  use  of  a  locomotive  engine  must  have  been  ac- 
counted a  nuisance  unless  authorised  by  the  legislature,  yet,  being 
so  authorised,  the  use  of  it  is  lawful,  and  the  defendants  are  not 
liable  for  an  accident  caused  by  such  use  without  any  negligence 
on  their  part.  It  is  said  that  where  a  person  keeps  an  animal  of  a 
ferocious  nature,  it  is  not  necessary  to  allege  a  scienter ;  but  that 
is  very  properly  the  law,  because  the  negligence  is  the  unlawful 
act  of  keeping  such  an  animal.  If  the  animal  be  tame  it  is  not 
unlawful  to  keep  it,  unless  it  is  known  to  be  of  dangerous  habits. 
My  judgment  proceeds  upon  the  ground  that  the  legislature  has 
made  the  use  of  locomotive  engines  not  an  unlawful  act ;  and, 
therefore,  it  is  lawful  for  the  defendants  to  use  them  so  long  as 
they  do  so  without  negligence. 

Willes,  J.  I  am  entirely  of  the  same  opinion,  though  I  have 
had  considerable  reluctance  in  coming  to  that  conclusion,  because 
looking  at  the  report  of  this  case  in  3  Hurlstone  and  Norman,  743, 
I  feel  that  we  are  obliged  to  reverse  the  judgment  of  the  court 
below,  although  we  do  not,  in  point  of  law,  differ  in  opinion  from 
that  court.  There  was  evidence  that  the  defendants  had  taken 
every  precaution,  and  adopted  every  means  in  their  power,  and 
which  science  could  suggest,  to  prevent  injury.      It  would  have 


ACCIDENT.  301 


No.  8.  —  Vaughan  v.  Taff  Vale  Railway  Co. 


been  a  question  for  the  jury  whether  they  believed  that  evidence  ; 
but  the  question  submitted  to  them  was  not  upon  the  whole  evi- 
dence, but,  taking  it  as  a  fact  that  the  defendants  had  used  every 
precaution  which  they  could  consistently  with  the  working  of  the 
line,  whether  the  jury  did  not  think  that  they  were  guilty  of  negli- 
gence. Now.  the  definition  of  negligence  is  the  absence  of  care, 
according  to  the  circumstances.  But  it  is  found,  as  a  fact,  that  the 
defendants  took  all  the  care  which  they  could  under  the  circum- 
stances. Therefore  upon  that  — taken  as  a  fact  and  not  merely  as 
evidence  of  the  fact  —  there  is  a  finding  that  the  defendants  only 
did  that  which  the  Act  of  Parliament  allowed  them  to  do,  and  took 
all  possible  care  to  prevent  injury.  I  therefore  think  that  the 
judgment  ought  to  be  reversed. 

Byles,  J.  I  am  of  the  same  opinion.  It  is  difficult  to  distin- 
guish this  case  from  Rex  v.  Pease.  The  case  states  that  the  engine 
travelled  at  the  slowest  pace  consistent  with  practical  utility,  which, 
is  tantamount  to  saying  that  it  travelled  at  the  proper  pace.  That 
being  so,  this  case  cannot  be  distinguished  from  that  of  a  station- 
ary chimney  which  the  legislature  has  not  only  authorised,  but 
required  to  be  kept  with  proper  care  ;  and  who  would  say  that  in 
such  case  if  an  accident  occurred  without  any  negligence  on  the 
part  of  the  persons  using  the  chimney,  they  would  be  responsible  ? 

Blackburn,  J.  At  first  it  would  seem  that  there  was  evidence 
of  negligence  in  the  use  of  the  engine,  for  the  fact  of  sparks  coming 
from  it  would  be  some  evidence  of  negligence ;  but  then  the  case 
says,  that  it  is  to  be  taken  as  a  fact  that  the  defendants  adopted 
every  precaution  that  science  could  suggest  to  prevent  injury. 
That  reduces  the  question  to  whether  the  defendants  are  respon- 
sible for  an  accident  arising  from  the  use  of  fire  when  they  are 
guilty  of  no  negligence  in  using  it.  That  might  have  been  a  diffi- 
cult question,  but  Bex  v.  Pease  has  settled  that  when  the  legisla- 
ture has  sanctioned  the  use  of  a  locomotive  engine,  there  is  no 
liability  for  injury  caused  by  using  it,  so  long  as  every  precaution 
is  taken  consistent  with  its  use.  Here  it  is  found,  as  a  fact,  that 
the  defendants  were  guilty  of  no  negligence  except  in  using  a  loco- 
motive engine  as  they  were  authorised  to  do.  Upon  the  rest  of 
the  case  it  is  not  necessary  to  say  anything. 

Judgment  re ve rsed. 


302  ACCIDENT. 


No.  8.  —  Vaughan  v.  Taff  Vale  Railway  Co.  —  Notes. 

ENGLISH    NOTES. 

The  rule  in  this  case,  though  not  received  into  the  law  without  ad- 
verse comments, .  has  heen  finally  established  by  the  decision  of  the 
House  of  Lords  in  the  case  of  Brand  v.  Hammersmith  Ry.Co.,  which 
will  be  itself  given  as  a  ruling  case  under  the  topic  "  Action"  No.  9. 

In  Bbjth  v.  Birmingham  Waterworks  Commissioners  (1856),  25  L. 
J.  Ex.  212  (cited  in  the  argument  in  the  principal  case),  a  water- 
company  who  had  properly  laid  down  pipes  under  their  statutory 
powers,  were  held  not  liable  for  the  consequences  of  an  escape  of  water, 
owing  to  an  extraordinary  frost  having  forced  out  a  fire  plug  which 
had  withstood  any  such  effect  of  frost  for  twenty-five  years.  Alderson, 
1).  (p.  213),  said  the  question  was  whether  there  had  been  negligence 
on  the  part  of  the  company,  and  the  company  were  not  liable  for  the 
consequence  of  a  frost  of  exceptional  severity,  which  they  could  not 
foresee. 

In  a  case  where  there  was  a  conflict  of  evidence  whether  the  steam 
locomotive  engine  used  by  the  company  was  of  the  best  known  con- 
struction for  preventing  the  emission  of  sparks,  the  judge  at  the 
trial  (Williams  J.,),  having  left  it  to  the  jury  to  decide  on  the  con- 
flict  of  evidence,  and  the  jury  having  found  for  the  plaintiff,  it  was 
held  by  Eble,  J.,  that  the  direction  was  right,  and  he  refused  a  rule 
for  a  new  trial.  Freemantle  v.  L.  &  X.  IV.  Ey.  Go.  (1861),  31  L.  J. 
C.  P.  12. 

It  may  here  be  observed  that  the  section  (86)  of  the  Railways 
Clauses  Consolidation  Act,  1845,  does  not  expressly  authorise  the  use 
of  steam  locomotive  engines;  and  it  may  become  a  question  if  by  ad- 
vancing science  the  use  of  other  and  safer  engines  should  be  found 
practicable,  whether  the  use  of  steam  locomotives  is  authorised  at  all. 

The  observations  of  E RLE,  C.  J.,  in  Clothier  v.  Webster  (1862),  12 
C.  B.  796  ;  31  L.  J.  C.  P.  316,  are  important  upon  the  question  of 
negligence  in  the  construction  of  public  works.  He  says:  "The  law 
requires  that  the  execution  of  public  works  by  a  public  body  shall  be 
conducted  with  a  reasonable  degree  of  care  and  skill:  and  if  they,  or 
those  who  are  employed  by  them,  ace  guilty  of  negligence  in  the  per- 
formance of  the  works  entrusted  to  them,  they  are  responsible  to  the 
party  injured."  In  support  of  this  proposition  he  cites  Lawrence  v. 
G.  N.  By.  Co.  (1851),  16  Q.  B.  I).  643  ;  20  L.  J.  Q.  B.  293,  where  the 
plaintiff's  lands  were  flooded,  owing  to  the  Railway  Company  having 
made  an  embankment  without  proper  culverts;  and  the  plaintiff  re- 
covered in  an  action,  although  he  had  previously  got  compensation  as 
a  landowner  whose  land  (at  another  part  of  the  line)  had  been  taken. 
For   the   Court    considered  that    it    was    not    within    the    scope   of    the 


ACCIDENT.  303 

No.  8.  —  Vaughan  v.  Taf f  Vale  Railway  Co.  —  Notes. 

arbitration  for  that  compensation,  to  estimate  a  chance  of  damage 
being  done  in  the  future,  owing  to  faulty  plans  in  a  different  part 
of  the  line. 

In  Cracknellv.  Mayor &c.  of  Thetford {1869), L.  R.,  4  C.  1*.  629;  38 
L.  J.  C.  I*.  343,  the  defendants  were  empowered  by  statute  to  erect 
.staunches  and  to  deepen  the  river  and  do  all  other  things  necessary  for 
the  purposes  of  the  navigation.  As  a  consequence  of  the  staunches,  the 
river  overrlo wed  its  bank,  and  flooded  the  plaintiff's  land,  hie  suggested 
that  this  might  have  been  avoided  by  the  defendants'  cutting  the  weeds 
and  dredging  the  accumulated  silt.  But  the  Court  held  that,  as  the 
defendants  had  no  power  to  do  either  of  these  things  unless  necessary 
for  the  purposes  of  the  navigation,  the  plaintiff  had  no  remedy  In- 
action, though  he  might  perhaps  have  compensation  under  the  Act. 

It  will  be  observed,  that  in  Smith  v.  L.  &  S.  W.  My.  Co.,  cited  under 
No.  2,  p.  214,  supra,  the  negligence  imputed  was  the  leaving  of  the  in- 
flammable dry  trimmings  by  the  side  of  the  railway,  and  not  the 
emission  of  sparks,  which  was  assumed  to  be  an  unavoidable  conse- 
quence of  their  working  under  statutory  powers. 

In  Boughton  v.  Midland  G.  W.  By.  of  Ireland  Co.  (1872),  7  Ir. 
Rep.  C.  L.  169.  the  defendants,  while  making  some  necessary  repairs, 
turned  the  water  of  their  canal  into  a  drain  through  which  it  ought  to 
have  flowed  into  a  sewer  of  the  Corporation  of  Dublin;  but  owing  to 
an  obstruction  in  the  sewer  it  was  diverted  and  flooded  the  plaintiff's 
land.  Hie  court  held  that  the  defendants,  not  having  been  guilty  of 
negligence,  were  not  liable. 

In  Smith  v.  Midland  By.  Co.  (V.  C.  Bacon,  1877),  37  L.  T.  224,  it 
was  held  that  a  nuisance  by  smoke  and  noxious  vapours  is  not  a  neces- 
sary evil  authorised  by  the  ordinary  statutory  power  to  run  locomotives. 
And  this  appears  to  be  one  of  the  elements  considered  in  some  of  the 
judgments  delivered  in  the  House  of  Lords  in  the  Scotch  case  of  City 
of  Glasgow  By.  Co.  v.  Hunter  (1870).  L.  R.  2  Sc.  App.  78.  See  this 
case  further  noted  under  ACTION  No.  9,  post. 

In  Thomas  v.  Birmingham  Coital  Co.  (1879),  4'.)  L.  J.  Q.  B.  850, 
the  plaintiff,  owner  of  a  colliery,  sued  the  defendants,  proprietors  of  a 
canal  constructed  under  Act  of  Parliament,  for  damage  caused  to 
plaintiff's  mine  by  water  which  overflowed  from  the  canal  into  a  brook, 
and  thence  into  the  mine.  It  was  found  by  the  Official  Referee,  that 
on  the  occasion  of  an  extraordinary  rainfall  the  defendants  had  opened 
a  sluice,  discharging  the  water  which  did  the  damage;  but,  if  they  had 
not  done  so,  the  canal  bank  would  have  probably  burst,  the  whole 
country  have  been  flooded,  and  damage  done  to  many  other  persons, 
with  more  damage  to  the  plaintiff.  The  Queen's  Bench  Division 
{Cockbukn,  C.  J.,  Lush,  J.,  and  Maxisty,    J.,)    held,  on  these  find- 


304  ACCIDENT. 

No.  8.  —  Vaughan  v.  Taf  f  Vale  Railway  Co.  —  Notes. 

ings,  that  there  was  no  case  for  compensation  under  the  Act  for  doing 
that  which  was  the  only  thing  under  the  circumstances  to  he  done  to 
avert  a  catastrophe.  Dixon  v.  Metr.  Board  of  Works,  cited  under 
No.  7,    p.  295,  ante,  was  a  case  of  a  very  similar  character. 

In  SimJein  v.  L.  &  N.  W.  By.  Co.  (1888),  21  Q.  B.  D.  453,  the 
actiun  was  brought  by  the  plaintiff  for  damage  in  consequence  of  liis 
horse  being  frightened  by  the  noise  and  sight  of  the  steam  of  an  engine 
near  a  railway  station.  The  jury  had  found  that  the  defendants  were 
guilty  of  negligence  in  not  properly  and  sufficiently  screening  the  rail- 
was'  from  the  road.  The  Court  of  Appeal,  Lords  Justices  Cottox  and 
Lopes,  with  the  hesitating  assent  of  Lord  Justice  Fry,  held  the  ver- 
dict unsupported  by  evidence.  There  was  a  wooden  open  paling  five 
feet  high  between  the  roadway  and  the  railway:  there  was  a  distance 
of  40  feet  between  the  metals  of  the  railway  and  the  paling;  and 
this  state  of  things  had  existed  for  more  than  twenty  years  without 
accident. 

In  the  following  cases  the  question  has  been  whether  the  plaintiff — ■ 
as  regards  the  defendant — is  bound  to  exercise  all  the  powers  of  his 
Acts   to  prevent  damage. 

In  Dunn  v.  Birmingham  Canal  Co.  (1872),  L.  E,,  7  Q.  B.  244;  41 
L.  J.  Q.  B.  121,  and  (in  Exch.  Ch.)  8  Q.  B.  42;  42  L.  J.  Q.  B.  137, 
the  question  arose  as  to  the  liability  of  a  canal  company  to  the  owner 
of  the  mines  under  it,  — the  canal  company  having,  under  their  Acts, 
the  option,  which  they  did  not  exercise,  to  purchase  the  minerals,  after 
notice  of  the  intention  of  the  mine-owner  to  work  them.  The  plaintiff 
(the  mine-owner)  had  then  worked  his  mine  in  the  ordinary  way,  and 
withoul  taking  any  special  precautions  against  letting  down  the  surface. 
The  consequence  was  that  the  strata  became  dislocated;  and  the  water 
from  the  canal  flooded  the  mine.  The  Exchequer  Chamber,  affirming  the 
judgment  of  the  Court  of  Exchequer,  decided  that  the  plaintiff  could  not 
maintain  an  action  against  the  canal  company  for  the  damage  done  by 
flooding  his  mine.  The  company's  option  to  purchase  the  minerals  did 
not  (as  between  them  and  the  mine-owner),  oblige  them  to  purchase; 
and  no  other  kind  of  negligence  in  the  exercise  of  their  statutory  powers 
was  suggested. 

In  Gecldes  v.  Proprietors  of  Bann  Reservoir  (H.  L.  Appeal  from 
Ireland,  1878),  3  App.  Cas.  430,  the  respondents  (defendants)  were 
incorporated  by  statute  to  make  and  maintain,  by  means  of  a  reser- 
voir, a  constant  water-supply  for  owners  of  mills  situated  on  the  river 
Bann.  To  do  this  they  had  powers  to  collect  waters  into  a  reservoir, 
from  which  water  was  from  time  to  time  to  be  sent  down  to  the  river 
Bann  through  the  channel  of  a  stream  called  the  Muddock;  and  they 


ACCIDENT.  305 


No.  8.  —  Vaughan  v.  Taff  Vale  Railway  Co.  —  Notes. 


had  powers  to  maintain,  widen,  deepen,  cleanse,  &c.,  proper  channels 
and  watercourses,  &c.  The  appellant  was  the  plaintiff  in  an  action 
for  damages  done  to  his  land  by  flooding;  and  it  appeared  that  the 
result  of  the  defendants'  operations  was  at  times  to  pour  down  through 
the  channel  of  the  Muddock  more  water  than  it  would  hold,  and  this 
was  the  cause  of  the  flooding.  The  House,  reversing  the  order  of  the 
Court  of  Exchequer  Chamber  in  Ireland,  and  restoring  that  of  the 
Queen's  Bench  in  Ireland,  gave  judgment  in  favour  of  the  plaintiffs, 
on  the  ground  that,  the  defendants  having  power  to  widen  and  deepen 
the  channel  of  the  Muddock  sufficiently  to  contain  the  water,  were 
bound  to  do  so  before  sending  the  water  down.  Lord  Blackbukx  (3 
App.  Cas.  455)  states  the  principle  thus:  "It  is  now  thoroughly 
well  established  that  no  action  will  lie  for  doing  that  which  the  legis- 
lature has  authorised  if  it  can  be  done  without  negligence,  although  it 
does  occasion  damage  to  any  one;  but  an  action  does  lie  for  doing  that 
which  the  legislature  has  authorised,  if  it  be  done  negligently.  And  L 
think  that,  if  by  a  reasonable  exercise  of  the  powers  either  given  by 
statute  to  the  promoters,  or  which  they  have  at  common  law,  the 
damage  could  be  prevented,  it  is,  within  this  rule,  '  negligence  '  not  to 
make  such  reasonable  exercise  of  their  powers." 

It  seems  questionable  whether,  having  regard  to  the  decision  of  the 
House  of  Lords  in  Geddes  v.  Proprietors  of  Bann  Reservoir,  the  deci- 
sion of  the  Exchequer  Chamber  in  Dunn  v.  Birmingham  Canal  Co.  can 
be  supported  otherwise  than  on  the  ground  of  the  special  relations  be- 
tween the  canal  company  and  the  mine-owner,  under  the  various  Acts 
of  Parliament.  Had  the  mining  operations  under  the  canal  resulted 
in  the  flooding  of  the  land  of  a  stranger,  it  would  appear,  on  the  prin- 
ciple laid  down  by  Lord  Blackburx,  that  the  company  might  be 
charged,  in  an  action  by  the  stranger,  with  their  neglect  to  avert  the 
damage  by  exercising  their  power  to  purchase  the  mines. 

The  decision  in  Geddes  v.  Proprietors  of  Bann  Reservoir  was  ap- 
plied by  Stephen,  J.,  to  an  action  against  a  corporation  having  power 
to  make  and  repair  sewers,  for  damage  caused  by  a  defect  in  a  sewer, 
which  (according  to  the  evidence)  the}7  had  not  used  reasonable  means 
t<>  discover,  — the  duty  to  use  such  means  being,  in  the  opinion  of  the 
Judge,  implied  by  the  power  to  repair.  Fleming  v.  Mayor  &c.  of 
Manchester  (1881),  44  L.  T.  517. 

The  empowering  Acts  have  been  construed  as  none  the  less  author- 
ising a  nuisance,  although  a  certain  latitude  within  well  defined  limits 
was  allowed  in  choice  of  the  locality.  So  in  the  case  of  Truman  v. 
L.  B.  &  S.  C.  By.  Co.  {London  B.  &  S.  C.  Eg.  Co.  v.  Truman,  H.  L. 
1885),  11  App.  Cas.  52;  55  L.  J.  Ch.  354,  — where  the  company  was 
vol.  i.  —  20 


;06  ACCIDENT. 


No.  8.  —  Vaughan  v.  Taff  Vale  Kailway  Co.  —  Notes. 


empowered  to  purchase  land  not  exceeding  50  acres  for  station-yards 
for  cattle,  —the  House  of  Lords  (reversing  the  judgment  of  the  Court 
of  Appeal)  held  that  the  company  were  entitled  to  select  the  site,  just 
as,  in  making  the  original  railway,  they  were  entitled  to  select  a  line 
within  the  limits  of  deviation;  and  that  the  use  for  the  purposes  of  the 
Act  of  the  site  so  selected,  although  necessarily  a  nuisance,  did  not 
make  them  liable  to  an  action. 

In  contrast  to  the  last  mentioned  case  is  the  case  of  Hill  v.  Metr. 
Asylum  Board  (H.  L.  1881),  6  App.  Cas.  201;  50  L.  J.  Q.  B.  353. 
The  defendants  were  a  corporation  constituted  under  the  Metropolitan 
Poor  Act  18G7  (30  &  31  Vict.  c.  6),  which  authorises  the  formation  of 
districts   and   district  asylums  for  the  care  and  cure  of  sick  and  infirm 
poor,  and  enables  the  corporations  constituted  under  the  Act  to  accpiire 
hinds  by  voluntary  purchase,  and  to  erect  buildings,  for  the  purposes  of 
the  Act.      The  House  of  Lords  held  that  the  Act  did  not  authorise  these 
things  to  be  done  so  as  to  create  a  nuisance  to  the  neighbourhood  of  any 
land  purchased  or  used.      And  the  defendants,  having  erected  buildings 
at  Hampstead  which  they  used  as  a  small-pox  hospital,  and  this  having 
been  found  in  fact  to  be  a  nuisance  to  the   neighbourhood,   the  House 
decided  that  an  injunction  had  been   rightly   granted  by  the  Court  of 
first  instance.      Lord  Selbornk  observed   that   in   granting  the  general 
powers  of  the  Act,  the  legislature   may   be  assumed  to  have  thought  it 
possible  that  they   might  be   exercised  somewhere,  without  creating  a 
nuisance;  and  he  distinguished    the  case    from    one    where   the   legis- 
lature   granted   specific    powers,    to   he    exercised  within   well    defined 
limits.       And   Lord  Blackbubn    (0   App.    Cas.    p.  203)    observes,    re- 
ferring to  an  expression  of  Lord  Cairx.s  in  the  Hammersmith  Bailvjay 
Case  (L.  R.  4  H.  L.  215):    "It  is  a  reductio  ad  absurdum  to  suppose 
it  left  in  the  power  of  the  person  who  had   the  cause  of  complaint,   to 
obtain    an    injunction,    and   so  prevent    the    doing  of    that    which    the 
legislature    intended  to  be    done    at   all    events.      The    legislature  has 
wry  often  interfered  with  the  rights  of  private  persons,  but  in  modern 
times  it  has  generally  given  compensation  to  those  injured;   and,  if  no 
compensation    is    given,    it    affords   a   reason,    though    not  a  conclusive 
reason,     for   thinking    that    the    intention   of   the    legislature   was,    not 
that  the  thing  should  be  done  at  all  events,  but  only  that   it   should   be 
done,  if  it  could    lie    done,    without    injury    to   others.      What   was    the 
intention  in  any   particular  Act  is  a  question  of  the  construction  of  the 
Act." 

Intermediate  in  its  circumstances,  between  the  two  last  cited  cases, 
is  the  older  one  of  Beg.  v.  Bradford  Canal  JSTar.  Co.  (1865),  0  B.  & 
S.  (331;  34  L.  J.  Q.  B.  191,  where  the  canal  company  having  been 
empowered  by  their  Acts,  to  supply  their  canal  from  two    sources,  both 


AC<  llH'.XT.  3<»7 

No.  8. — Vaughan  v.  Taff  Vale  Railway  Co.       Notes. 


of  which  were  unpolluted  at  the  time  of  the  Acts,  were  held  not  to  lie 
justified  in  creating  a  nuisance  by  continuing  to  supply  their  canal 
from   one   of   the   sources    which    had   since    become    polluted. 

AMERICAN    NOTES. 

'Hi'-  rule  of  tin-  principal  case  is  universally  recognized  here,  discarding  the 
earlier  rule  of  some  other  eases  in  England. 

"  We  have  not  in  this  State  adopted  the  rule  of  the  English  courts,  which 
in  substance  holds  that  proof  that  the  fire  was  communicated  from  the 
engines  of  the  company  throws  upon  the  defendant  the  burden  of  showing 
that  there  was  no  want  of  care,  diligence,  or  skill  in  their  construction  or 
management.  Piggot  v.  E.  C.  R.  Co.,  51  Eng.  Com.  Eaw.  228.  Our  rule 
holds  that  the  use  of  locomotive  engines  in  the  business  of  railroads  being 
lawful,  no  presumption  of  negligence  arises  from  tin-  mere  fact  that  fire 
lias  been  communicated  from  them."  Field  v.  N.  Y.  Cent.  R.  Co.,  32 
New  York,  319. 

"  It  seems  to  have  been  assumed  in  this  country  that  the  business  of  rail- 
ways being  lawful,  no  presumption  of  negligence  arises  from  the  fact  of  tire 
heing  communicated  by  their  engines."  Redfield  on  Railways.  §  12-")  (5); 
Pierce  on  Railroads,  131  ;  Lyman  v.  Boston,  cSv.  Ry.,  -1  dishing  (Mass.). 
288;  Burroughs  v.  Housatonic  Ry.  Co.,  15  Connecticut,  121;  Morris.  Sfc.  R. 
Co.  v.  State,  36  New  Jersey  Eaw.  55:5.  In  the  last  case,  in  the  court  of 
errors  and  appeals,  the  principal  case  was  cited  and  followed.  In  Burroughs 
v.  Housatonic  R.  Co.,  supra,  the  court  say:  -'It  was  indeed  estimated  that 
the  legislature  could  not  authorize  the  company  to  do  the  act  they  have 
done.  If  by  this  is  meant  that  they  could  not  authorize  them  to  burn 
this  building  without  making  compensation,  it  will  not  be  denied.  But  to 
say  that  they  can  pass  no  Act  which,  in  its  remote  consequences,  and  in 
connection  with  other  causes,  may  affect  private  property,  is  a  refinement 
which  has  never  been  recognised."  The  court  further  hold  that  there  is  no 
difference  between  original  and  derivative  rights,  and  conclude  that  "where 
there  is  neither  negligence  nor  folly  in  doing  a  lawful  act,  the  party  cannot 
be  chargeable  with  the  consequences." 

The  same  principle  is  laid  down  in  Chapman  v.  Atlantic,  8fc.  R.  Co.,  37 
Maine.  92;  Phila  ,  frc.  R.  Co.  v.  Hendrickson^  80  Penn.  St.  182:  21  Am. 
Hep.  97;  Chicago,  frc.  R.  Co.  v.  Pennell,  94  Illinois. -118;  Candy  v.  Chicago, 
$c.R.  Co.,  30  Iowa,  120;  0  Am.  Rep.  082:  Louisville,  See.  R.  Co.  v.  Richard- 
son. 66  Indiana,  43;  32  Am.  Rep.  91;  Leavemcorth,  §'c.  R.  Co.  v.  Coot.  18 
Kansas.  261;  Baltimore,  S-c.  R.  Co.  v.  Woodruff:  1  Maryland,  212;  Bur- 
roughs x.  Housatonic  R.  Co..  15  Connecticut,   131. 

The  principal  case  is  cited  in  Cogswell  v.  N.  Y.,8fc.  R.  Co.,  103  New  York. 
10;  50  Am.  Rep.  0.  note,  but  only  incidentally  and  illustratively;  and  so  in 
Sawyer  x.  Davis.  136  Massachusetts,  239';  1!>  Am.  Rep.  27.  In  the  latter  the 
court  observe :  "The  legislative  sanction  makes  the  business  lawful,  and 
defines  what  must  be  accepted  as  a  reasonable  use  of  property  and  exercise 
of  rights  on  the  part  of  the  railroad  company,  subject  always  to  the  qualifica- 
tion that  the  business  must  be  carried  on  without  negligence  or  unnecessary 
disturbance  of  the  rights  of  others." 


308  ACCIDENT. 


No.  9. -River  Wear  Commissioners  v.  Adamson.  —  Rule. 

No.   9.  —  EIVER  WEAR   COMMISSIONERS   v.   ADAMSON. 

(H.  l.  1877.) 

RULE. 

Where  a  statute  imposes  upon  persons  of  a  general  de- 
scription a  liability  in  respect  of  a  matter  for  which  a 
common-law  liability  would  attach,  the  court  will,  if  pos- 
sible, read  into  the  statute  the  common-law  exception  of 
inevitable  accident. 

So  that  where  by  a  Harbour  Act  it  was  enacted  that  the 
owner  of  every  vessel  or  float  of  timber  should'  be  answer- 
able to  the  Harbour  Commissioners  for  any  damage  done 
by  such  vessel  &c,  it  was  held  by  the  House  of  Lords, 
affirming  the  judgment  of  the  Court  of  Appeal,  that  in  a 
case  where  damage  to  the  pier  had  been  occasioned  bv  a 
vessel,  through  the  violence  of  the  winds  and  wave-  at 
a  time  when  the  master  and  crew  had  been  compelled  to 
escape  from  the  vessel,  and  had  consequently  no  control 
over  it,  the  owners  were  not  liable. 

River  Wear  Commissioners  v.  Adamson. 

47  L.  J.  Q.  B.  193  ;  2  App  Cas.  437. 

This  was  an  appeal  against  a  decision  of  the  Court  of  Appeal, 
reversing  a  decision  of  the  Court  of  Queen's  Bench. 

The  appellants  were  the  Commissioners  appointed  under  the 
Harbours,  "Dock,  and  Piers  Act,  1847  (10  Vict,  c.  27),  for  construct- 
ing and  maintaining  a  pier  at  the  mouth  of  the  river  Wear. 

The  respondents  were  the  owners  of  the  steamship  Natalian, 
which,  on  the  17th  of  December,  1872,  was  caught  by  a  violent  storm 
while  on  a  voyage  from  London  to  Newcastle.  While  endeavour- 
ing to  enter  Sunderland  harbour  she  was  driven  aground  near  the 
appellants'  pier,  and  the  master  and  crew  were  compelled  to  save 
their  lives  by  abandoning  the  ship.  As  the  tide  rose,  the  aban- 
doned ship  floated,  and  was  driven  by  the  storm  against  the  ap- 
pellants' pier,  causing  injury  to  the  amount  of  £2825  13s. 


ACCIDENT.  309 


No.  9.  —  River  Wear   Commissioners  v.  Adamson. 

This  action  was  brought  by  the  appellants  to  recover  damages 
for  the  injury  from  the  respondents  as  owners  of  the  vessel. 
Allegations  of  negligence  were  mutually  made  by  both  parties, 
but  withdrawn  at  the  trial. 

The  case  was  tried  before  Qi'ain,  J.,  at  the  Durham  Summer 
Assizes,  1873,  when  a  verdict  was  entered  for  the  plaintiffs,  the 
appellants,  with  leave  to  move  to  enter  a  nonsuit  or  a  verdict  for 
the  defendants. 

The  Court  of  Queen's  Bench  refused  the  rule,  but  their  decision 
was  reversed  by  the  Court  of  Appeal.  This  appeal  was  brought 
to  the   House  of  Lords. 

The  section  of  the  Act  on  which  the  case  turned,  is  as  follows 
(10  Vict.  c.  27.  s.  74):  — "  The  owner  of  every  vessel  or  float  of  tim- 
ber shall  be  answerable  to  the  undertakers  for  any  damage  done  by 
such  vessel  or  float  of  timber,  or  by  any  person  employed  about 
the  same,  to  the  harbour,  dock,  or  pier,  or  the  quays  or  works  con- 
nected therewith  ;  and  the  master  or  person  having  the  charge  of 
such  vessel  or  float  of  timber,  through  whose  wilful  act  or  negli- 
gence any  such  damage  is  done,  shall  also  be  liable  to  make  good 
the  same  ;  and  the  undertakers  may  detain  any  such  vessel  or  float 
of  timber  until  sufficient  security  has  been  given  for  the  amount 
of  damages  done  by  the  same ;  provided  always  that  nothing 
herein  contained  shall  extend  to  impose  any  liability  for  any  such 
damage  upon  the  owner  of  any  vessel  where  such  vessel  shall,  at 
the  time  when  such  damage  is  caused,  be  in  charge  of  a  duly 
licensed  pilot,  whom  such  owner  or  master  is  bound  by  law  to 
employ  and  put  his  vessel  in   charge  of." 

Argued  for  the  appellants  :  —  The  object  of  the  legislature  was 
to  protect  the  undertakers  of  these'  works  ;  and  the  words  of  the 
74th  section  show  clearly  that  the  protection  was  to  be  without 
restriction,  and  beyond  that  afforded  by  the  common  law.  The 
circumstance  of  the  persons  in  charge  of  the  vessel  not  being  on 
board  cannot  deprive  the  pier  constructors  of  this  protection. 
Eglington  v.  Nonnan,A&  L.  J.  (Ex.)  557.  The  meaning  of  this  sec- 
tion of  the  statute  was  considered  in  Dennisv.  Tovell,  L.  R.,8.  Q.  B. 
10.  There,  it  is  true,  the  master  and  crew  were  on  board,  but  it 
was  distinctly  found  that  the  mischief  was  "inevitable."  The 
principle  of  Eylands  v.  Fletcher  (p.  235,  ante)  is  an  authority  for 
establishing  tin:'  liability  of  the  shipowner;  for  he  brought  to  the 
pier  something   which   would  be  mischievous    if  not   kept    under 


110  ACCIDENT. 


No.  9.  —  River  Wear   Commissioners  v.  Adamson. 


proper  control.  In  E.  v.  Leigh  (1839),  10  A.  &  E.  398,  it  was  held 
that  a  landowner  may  be  liable  by  prescription  to  repair  sea-walls,, 
though  destroyed  by  extremely  tempestuous  weather.  In  Nichols  v. 
Marsland  (p.  262,  ante)  the  obligation  was  created  by  a  mere  impli- 
cation of  law,  and  cannot  be  compared  to  that  imposed  by  the 
unequivocal  words  of  a  statute.  In  The  Merle  (1874),  31  L.  T. 
447,  it  was  held  in  similar  circumstances  that  the  shipowner  was 
under  this  (74th)  section  prevented  from  setting  up  the  defence 
of  inevitable  accident.  There  was  not  here  any  evidence  of  such 
an  overwhelming  power  of  storm  as  to  excuse  the  defendants  from 
not  doing  something  else:  but  even  if  there  had  been,  that  would 
not  take  them  out  of  the  operation  of  the  express  words  of  the 
statute. 

Argued  for  the  respondents: — The  object  of  the  statute  was 
to  regulate  procedure,  not  to  create  a  new  liability  ;  so  that  where- 
there  was  a  proper  title  to  indemnify,  the  pier  undertakers  should 
have  somebody  to  resort  to  without  being  embarrassed  by  legal 
technicalities.  There  was  no  proper  cause  for  compensation  here. 
The  damage  was  occasioned  by  the  storm,  after  the  men  had  been 
with  difficulty  saved  from  the  wreck,  and  when  no  human  power 
had  any  control  over  the  vessel.  The  cases  of  liability  under  a 
covenant  to  pay  rent,  although  the  premises  have  been  destroyed 
by  tire  I  Paradine  v.  Jane,  Aleyn,  26;  Brewster  v.  KUchell,  1  Salk. 
198),  have  no  analogy  to  the  question  under  a  legislative  provision 
like  the  present.  The  case  of  7?.  v.  Commissioners  of  Sewers  for 
Jlr.  Somerset  (1799.  4  R.  R.  659  ;  8  T.  R.  312)  showed  that  al- 
though the  adjoining  owners  were  bound  to  repair  a  sea-wall,  if 
that  wall  was  destroyed  by  tempest,  the  expense  fell  not  upon 
them  but  upon  the  owners  generally  of  the  level.  In  Nugent  v. 
Smith  (1876),  1  C.  1'.  I>.  423,  a  common  carrier  was  held  not  to- 
be  an  insurer  against  the  death  of  an  animal  which  during  tem- 
pestuous weather  struggled  violently  and  in  the  end  died. 

The  Lord  Chancellor  (Lord  Cairns).  The  steamship  Natalian 
was  attempting,  under  stress  of  water,  to  enter  the  Sunderland 
Docks,  belonging  to  the  appellants.  While  she  was  still  in  the 
open  sea,  about  forty  or  fifty  yards  from  the  pier,  she  struck  the 
ground,  canted  with  her  head  to  the  south,  and  drifted  bodily 
ashore.  The  crew  were  rescued  from  the  ship  by  the  rocket 
apparatus.  The  tide  was  low  at  the  time,  and,  as  the  tide  rose, 
the    flood   and   the   storm   drifted    the    ship   against  the  pier,  and 


ACCIDENT.  311 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


caused  damage  to  the  amount  of  £2825  1 3s.  The  respondents 
are  the  owners  of  the  ship;  and  the  question  is  whether  they  are 
liable  to  pay  this  damage  to  the  appellants.  The  Court  of  Queen's 
Bench  have  held  that  the  owners  are  liable.  The  Court  of  Appeal 
have  been  unanimously  of  opinion  that  they  are  not. 

The  question  depends  upon  the  true  meaning  of  the  Harbours, 
Docks,  and  Piers  Clauses  Act,  which  enacts  that  the  owner  of 
every  vessel  or  float  of  timber  shall  be  answerable  to  the  under- 
takers (that  is,  in  this  case,  to  the  appellants)  for  any  damage  dune 
by  such  vessel  or  float  of  timber,  or  by  any  person  employed  about 
the  same,  to  the  harbour,  dock,  or  pier,  with  certain  further  provi- 
sions which  I  need  not  at  present  mention.  The  Court  of  Appeal 
have  been  of  opinion,  and  I  think  rightly,  that  the  injury  was  not 
in  this  case  occasioned  by  the  voluntary  act  or  the  negligence  of 
the  respondents,  or,  indeed,  of  any  person  on  board  of  or  connected 
with"  the  ship  ;  that  it  could  not  have  been  prevented  by  any 
human  instrumentality;  but  that  it  was  occasioned  by  a  vis  major, 
—  naniely,  by  the  act  of  Cod  in  the  violence  of  the  tempest. 
Founding  himself  on  this,  the  Master  of  the  Polls  states  that  it  is 
a  familiar  maxim  of  law  that,  where  there  is  a  duty  imposed  or 
liability  incurred,  as  a  general  rule  there  is  no  such  duty  required 
to  be  performed,  and  no  such  liability  required  to  be  made  good, 
where  the  event  happens  through  the  act  of  Cod  or  the  Queen's 
enemies,  and  that  the  court  may  well  come  to  the  conclusion  that 
the  act  of  Cod  and  the  Queen's  enemies  were  not  meant  to  be 
comprised  within  the  first  words  of  the  section.  The  Lord  Chief 
Baron  states  that  no  man  can  be  answerable,  unless  by  express 
contract,  for  any  mischief  or  injury  occasioned  to  another  by  the 
act  of  God.  Lord  Justice  Mellish  states  that  the  act  of  God  does 
not  impose  any  liability  on  anybody.  Mr.  Justice  DENMAN  states 
that  in  every  act  of  Parliament  words  are  not  to  be  construed  to 
impose  a  liability  for  an  act  done  if  the  act  is  substantially  caused 
by  a  superior  power,  such  as  the  law  calls  the  act  of  God. 

In  my  opinion  these  expressions  are  broader  than  is  warranted 
by  any  authorities  of  which  I  am  aware.  If  a  duty  is  cast  upon 
an  individual  by  common  law,  the  act  of  God  will  excuse  him  from 
the  performance  of  that  duty.  No  man  is  compelled  to  do  that 
which  is  impossible.  It  is  the  duty  of  a  carrier  to  deliver  safely  the 
goods  intrusted  to  his  care;  but  if  in  carrying  them  with  proper 
care  they  are  destroyed  by  lightning  or  swept  away  by  a  flood, 


ol2  ACCIDENT. 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


lie  is  excused,  because  the  safe  delivery  has  by  the  act  of  God 
become  impossible.  If,  however,  a  man  contracts  that  he  will  be 
liable  for  the  damage  occasioned  by  a  particular  state  of  circum- 
stances, or  if  an  act  of  Parliament  declares  that  a  man  shall  be 
liable  for  the  damage  occasioned  by  a  particular  state  of  circum- 
stances, 1  know  of  no  reason  why  a  man  should  not  be  liable  for 
the  damage  occasioned  by  that  state  of  circumstances,  whether  the 
state  of  circumstances  is  brought  about  by  the  act  of  man  or  by 
the  act  of  God.  There  is  nothing  impossible  in  that  which,  on 
such  an  hypothesis,  he  has  contracted  to  do,  or  which  he  is  by  the 
statute  ordered  to  do,  —  namely,  to  be  liable  for  the  damages.  If, 
therefore,  by  the  section  to  which  I  have  referred,  it  is  meant  that 
the  owner  of  every  vessel  shall,  irrespective  of  whether  anything 
lias  happened  which  would  at  common  law  give  a  right  of  action 
against  any  one,  pay  to  the  undertakers  the  damage  done  by  a  ship 
to  the  pier,  I  should  be  unable  to  see  any  reason  why  the  payment 
should  not  be  made  in  the  manner  required  by  the  statute.  I  can- 
not, however,  look  upon  this  section  of  the  statute  as  intended  to 
create  a  right  to  recover,  damages  in  cases  where  before  the  Act 
there  was  not  a  right  to  recover  damages  from  some  one.  The 
section  and  those  which  follow  it  are  in  an  Act  which  collects 
together  the  common  and  ordinary  clauses  which  it  was  the  habit 
of  Parliament  to  insert  in  private  bills  authorising  the  construction 
of  piers  and  docks.  There  was  no  special  legislation  intended  on 
this  head  for  any  particular  place  or  any  particular  state  of  cir- 
cumstances; and  it  would  be  difficult  to  suppose  that,  by  means  of 
ordinary  and  routine  clauses  inserted  in  private  or  local  Acts,  the 
legislature,  although  it  might  well  provide  a  ready  and  simple  pro- 
cedure for  recovering  damages  where  a  right  to  damages  existed  by 
common  law,  could  intend  to  create  a  new  right  and  a  new  liability 
to  damages  unknown  to  the  common  law.  By  the  common  law,  if 
a  pier  were  injured  by  a  ship  sailing  against  it,  the  owner  might  be 
liable  if  he  was  on  board  and  directing  the  navigation  of  the  ship, 
or  if  the  ship  was  navigated  by  persons  for  whose  negligence  he 
was  liable  ;  but  the  owner  would  not  be  liable  merely  because  he 
was  the  owner,  or  without  showing  that  those  navigating  the 
vessel  were  his  servants. 

In  my  opinion  it  was  to  meet  this  state  of  the  law  that  this  sec- 
tion was  introduced.  It  proceeds,  as  it  seems  to  me,  on  the 
assumption   that  damage    has  been   done  of   the  kind   for   which 


ACCIDENT, 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


compensation  can  be  recovered  at  common  law  against  some  per- 
son,—  that  is  to  say,  damage  occasioned  by  negligence  or  wilful 
misconduct,  and  not  by  the  act  of  God.  The  section  relieves  the 
undertakers  from  the  investigation  (always  a  difficult  one  for  them 
to  pursue)  whether  the  fault  has  been  the  fault  of  the  owner,  or  of 
the  charterer,  or  of  the  persons  in  charge.  It  takes  the  owner  as 
the  person  who  is  always  discoverable  by  means  of  the  register, 
and  it  declares  that  he  shall  be  the  person  answerable,  —  that  is 
to  say,  the  person  who  is  to  answer,  or  is  to  be  sued,  for  the  dam- 
age done.  It  does  not  absolve  the  master  or  crew  if  there  has  been 
wilful  fault  or  negligence  on  their  part.  They  in  that  case  may 
be  sued  as  well  as  the  owner.  But  if  the  owner  is  thus  in  the  first 
instance  made  to  pay  the  damage,  where  there  has  been  wilful  or 
negligent  conduct  on  the  part  of  the  master  or  crew,  the  owner 
may  (under  subsequent  sections)  recover  over  against  the  master  or 
crew;  and  if  the  damage  has  occurred  by  reason  of  the  act  or  omis- 
sion of  any  other  person,  —  if,  for  example,  some  one  who  had  hired 
the  ship  sent  her  to  sea  insufficiently  manned,  and  the  accident  oc- 
curred in  consequence,  —  the  owner  might  apparently  recover  from 
the  hirer  by  reason  of  this  act  or  omission.  The  clause  appears  to 
me  to  be  one  of  procedure  only,  dealing  with  the  mode  in  which  a 
right  of  action  for  damages  already  existing  shall  be  asserted,  and 
not  creating  a  right  of  action  for  damages  where  no  right  of  action 
against  anyone  existed  before.  This  makes  the^part  of  the  section 
relating  to  the  employment  of  a  pilot  intelligible  and  consistent 
with  the  rest  of  the  enactment.  If  a  licensed  pilot  is  in  charge, 
the  owner  is  not  discharged  from  a  possible  liability,  but  every- 
thing is  left  as  it  would  be  at  common  law.  If  a  pilot  was  in 
charge  of  a  ship,  and  the  owner  was  at  the  same  time  the  master 
navigating  the  ship,  and  did  an  act  which  caused  damage,  he 
would  be  liable  at  common  law,  and  the  Act  leaves  him  so;  but 
in  the  same  case  if,  while  the  pilot  was  in  charge  and  the  owner 
navigating  the^ship,  the  ship  became  unmanageable  by  tempest, 
the  owner  would  not  be  liable.  I  therefore  think,  although  I  do 
not  concur  in  the  reasoning  of  the  learned  Judges  of  the  Court  of 
Appeal,  that  their  conclusion  was  right,  and  that  the  appeal  ought 
to  be  dismissed  writh  costs. 

Lord  Hatherley.  I  must  candidly  say  that  this  case  has 
given  me  much  anxiety,  and  I  have  felt  very  great  doubt  and 
difficulty  as  to  the  proper  interpretation  to  be  given  to  this  clause, 


!14  ACCIDENT. 


No.  9.  —  Kiver  Wear  Commissioners  v.  Adamson. 


which  is,  as  it  appears  to  me,  somewhat  inartistically  framed.  I 
cannot  concur  in  the  views  expressed  in  the  Court  below  by  some 
of  the  learned  Judges,  on  the  one  hand,  that  the  damage  which 
was  done  in  this  case  having  been  caused  by  what  is  commonly 
said  to  be  an  accident,  but  is  called  in  tin:  language  technically 
used  in  the  law  courts  "the  act  of  Clod,"  —  namely,  a  storm,  —  the 
owner  of  the  vessel  would  be  excused  by  the  section  of  the  Act  of 
Parliament,  however  construed,  from  the  consequences  of  that  mis- 
chief.  Neither  can  I  think,  on  the  other  hand,  that,  as  has  been 
hold  by  others  of  the  learned  Judges  in  the  Court  below,  the  clause 
in  question  refers  only  to  cases  where  a  vessel  is  in  charge  of 
somebody.  I  do  not  think,  in  the  first  place,  that  the  grammati- 
cal construction  of  the  clause  will  admit  of  that  solution  of  our 
difficulties. 

When  we  look  at  the  whole  construction  of  the  clause,  it  appears 
to  me  that  it  speaks,  in  the  first  place,  of  damage  done  by  a  vessel, 
without  regard  to  any  one  being  on  board  or  not;  then  it  speaks, 
in  the  second  place,  of  damage  done  by  any  person  employed  about 
the  vessel ;  and  then  it  says  that  the  master  or  person  in  charge  of 
a  vessel  is  to  be  liable  if  damage  is  done  through  his  wilful  act  or 
negligence.  And  then  the  excepted  case  occurs  of  the  pilot, 
because  he  had  been  compulsorily  and  against  any  power  of  resist- 
ance of  the  owner,  placed  on   board  and  in  charge. 

Now  we  have  to  see  whether  or  not  damage  arising  from  the 
''act  of  God"  —  that  is  to  say,  in  this  particular  case,  a  tempest  — 
should  be  held  to  be  excepted.  There  might  be  other  cases  which 
would  be  similar  to  this  of  a  tempest;  the  vessel  might  have  been 
driven  on  the  pier  in  some  other  way,  or  have  been  injured  and 
become  unmanageable  by  lightning,  or  the  like.  However  it 
occurred,  if  the  pier  was  damaged  by  the  vessel  in  the  way  which 
was  called  by  the  learned  Judges  in  the  Court  below  "the  act  of 
Cod,"  is  there  anything  in  the  Act  of  Parliament  to  say  that  the 
owner  of  the  vessel  shall  not  be  responsible  for  the  damage,  but 
that  there  shall  be  an  exception  in  respect  of  damage  so  caused  ? 
One  can  easily  conceive  that  the  Legislature  might  think  it  desir- 
able that  those  who  provide  this  great  accommodation  for  the 
navigation  of  the  country  —  those  who  provide  harbours  of  refuge 
and  the  like,  which  are  greatly  wanted  in  many  parts  of  the  coasts 
of  the  United  Kingdom  —  should  lie  indemnified  against  the  pos- 
sible damage  which   may  accru  ;  to  their   docks  or  other  works, 


ACCIDENT.  31i 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


which  they  construct  in  discharge  of  the  duties  in  question,  and 
in  the  exercise  of  those  powers  which  they  have  for  making  docks 
•and  other  works.  Those  promoters  might  say.  "  We  offer  protec- 
tion to  the  public  at  all  times  ;  only  protect  us  from  having  our 
works  damaged,  in  consideration  of  the  benevolent  hospitality 
which  we  so  afford." 

There  is  nothing,  as  it  appears  to  me,  utterly  unreasonable  in 
such  a  proposition  carried  out.  It  is  quite  true  that  many  cases 
put  by  the  learned  Judges  in  the  Court  below  are  cases  in  which 
it  would  seem  to  be  a  very  rigid  enactment,  indeed,  that  damage  to 
a  very  large  and  extensive  amount,  exceeding  the  value  of  the  ves- 
sel itself,  should  be  compensated  by  the  persons  whose  vessel  has 
done  this  damage  being  made  answerable  to  make  it  good  to  the 
full  amount  of  the  damage  done,  which  might  even  go  to  the 
destruction  of  the  principal  works,  and  might  therefore  result  in 
the  ruin  of  those  persons  whose  vessel  had  been  so  forced  against 
them.  But,  on  the  other  hand,  if  there  was  any  intention  at  all 
of  giving  a  relief  of  this  kind,  which  must  be  sought,  of  course,  in 
the  words  of  the  Act,  then  I  apprehend  that  the  exception  of  a 
storm  or  tempest  would  be  a  very  singular  one,  because  it  is  a 
probable  case  to  happen.  There  are,  no  doubt,  many  other  ways  in 
which  damage  might  be  done  ;  but  it  is  amongst  the  very  probable 
causes  that  a  storm  or  tempest  should  be  the  thing  which  would 
occasion  the  damage  through  the  medium  of  the  ship,  which 
directly  produced  that  damage.  I  do  not  think,  therefore,  that 
I  can  say,  at  all  satisfactorily  to  my  own  mind,  that  provided  that 
tin;  Act  is  clear  and  specific  in  its  clauses,  the  party  who  caused 
the  damage  could  be  exempted,  because  the  damage  was  the  result 
of  a  tempest,  and  not  of  what  is  ordinarily  called  his  fault. 
Neither,  as  1  have  already  said,  by  the  grammatical  construction  of 
the  clause,  do  I  think  that  the  clause  is  only  to  be  applied  in 
cases  where  some  master  or  other  person  is  in  charge  of  the  vessel. 

Possibly  the  expression  of  Hellish,  L.  J.,  may  come  nearer  to  the 
mind  of  the  Legislature.  His  notion  of  the  general  intent  of  the 
■clause  is  this:  that  it  points  to  something  in  which  man  is  con- 
cerned (I  think  that  is  his  expression), —  that  is  to  say,  in  which 
human  agency  intervenes;  and  it  was  on  that  ground  that  he  coin- 
cided with  the  views  taken  by  the  other  learned  Judges.  His  idea 
of  the  whole  intent  and  purpose  of  the  clause  was,  not  that  the 
"act  of  God"  was  wholly  to  excuse  the  person  liable  under  the 


316  ACCIDENT. 


No,  9.       River  Wear  Commissioners  v.  Adamson. 


enactment,  if  that  liability  once  existed ;  but  that  the  clause 
pointed  to  some  act  of  man  which  was  to  take  place,  and  not  to  a 
mere  casualty  occasioned  by  the  tossing  and  driving  about  of  the 
vessel  from  the  effect  of  a  storm  upon  the  sea. 

Finding  that  I  cannot  concur  in  the  reasons  given  in  the  Court 
below,  of  course  one  has  to  consider  the  construction  of  the  clause. 
I  think  that,  taking  the  view  which  was  taken  by  the  appellants  in 
this  case,  the  clause  has  been  framed  with  probably  extraordinary 
pressure  and  severity  against  the  persons  by  whose  vessels  this 
damage  would  be  created.  No  one  can  possibly  deny  that ;  and 
that  severity  seems  to  have  induced  some  of  the  Judges  before 
whom  the  case  has  come,  to  think  that  it  is  impossible  to  attribute 
such  an  intention  to  the  Legislature.  Now,  I  am  afraid  that  it 
does  sometimes  occur  that  an  act  of  the  legislature  cannot  be 
carried  out  without  very  great  inconvenience  and  hardship;  but 
that  is  not  because  the  legislature  intended  it,  but  because  the 
possibility  of  its  occurrence  had  been  forgotten.  I  think  that  such 
a  circumstance  may  have  occurred  here,  and  produced  the  enact- 
ment that  we  have  before  us. 

However,  it  is  the  opinion,  I  believe,  of  the  majority  of  your 
Lordships,  that,  on  the  whole  case  being  considered,  this  is  not  a 
case  that  we  can  regard  as  struck  at  by  this  clause.  "Whether  the 
ground  to  be  assigned  for  that  is  the  view  which  has  been  ex- 
pressed  by  the  Lord  Chancellor,  or  whether  any  view  may  be 
adopted  by  any  of  your  Lordships,  similar  to  that  taken  in  the 
Court  below,  leading  to  the  conclusion  that  the  damage  which 
here  occurred  is  not  brought  within  the  meaning  or  purview  of  this 
Act,  I  shall  not  pause  to  inquire.  There  being  this  doubtfulness  of 
opinion,  I  shall  not  do  what  I  might  probably  under  other  circum- 
stances have  thought  it  my  duty  to  do  in  this  case.  I  am  unwill- 
ing to  do  anything  further  than  say  that  I  cannot  concur  in  the 
opinion  expressed  by  my  noble  and  learned  friend  on  the  woolsack, 
otherwise  than  with  extreme  doubt  and  hesitation. 

Lord  O'Hacan. — I  need  scarcely  say  that  this  is  a  difficult  and 
embarrassing  case.  The  various  views  which  have  been  adopted 
by  able  Judges  make  this  very  plain,  and  \  do  not  think  that  any 
conclusion  at  which  we  can  arrive  will  be  completely  satisfactory. 

The  difficulty  arises  from  the  form  of  the  short  clause  we  are 
required  to  interpret.  Your  Lordships,  exercising  your  appellate 
jurisdiction,  act  as  a  court  of  construction.      You  do  not  legislate, 


ACCIDENT.  317 

No.  9.  —  River  Wear  Commissioners  v.  Adamson. 

but  you  ascertain  the  purpose  of  the  Legislature;  and  if  you  can 

discover  what  that  purpose  was,  you  arc.  hound  to  enforce  it, 
although  you  may  not  approve  the  motives  from  which  it  springs, 
or  the  object  which  it  aims  to  accomplish.     Our  daily  experience 

demonstrates  that  the  task  of  construction,  so  understood,  is  nol  an 
easy  one.  It  sometimes  involves  the  necessity  of  harmonising  appar- 
ently inconsistent  clauses,  and  making  out  homogeneous  provisions, 
cast  together  haphazard  by  various  minds  differently  constituted, 
and  looking  t'o  different  and  special  objects,  without  regard  to  the 
harmony  of  the  whole.  Undoubtedly,  if  the  first  division  of  the 
74th  section  of  the  Harbours,  Docks,  and  Piers  Clauses  Act,  1847, 
stood  alone,  it  would  seem  to  cast  upon  the  owner  under  all  pos- 
sible circumstances  liability  to  the  undertakers  for  any  damage 
done  by  his  vessel.  That  was  the  view  reluctantly  adopted  by  the 
Court  of  Queen's  Bench,  which  we  are  asked  to  affirm  in  opposition 
to  the  judgment  of  the  Court  of  Appeal;  and  if  your  Lordships, 
on  a  full  consideration  of  the  whole  clause,  are  satisfied  that  that 
was  the  view  intended  to  be  carried  out,  you  have  no  alternative 
but  to  act  upon  it.  No  speculation  as  to  the  inconvenience  or 
even  the  injustice  which  it  may  accomplish,  no  consideration  of 
the  admitted  innocence  of  the  owner  of  the  vessel,  or  of  the  inev- 
itable nature  of  the  accident  which  wrought  the  injury,  would 
justify  a  refusal  to  interpret  the  statute  according  to  the  design 
of  the  makers  of  it;  and  if  you  clearly  see  that  they  meant  the 
liability  to  be  unqualified  and  universal,  you  are  not  at  liberty,  on 
such  grounds,  to  defeat  that  design  and  say  that  the  appellants 
shall  not  have  the  benefit  of  it.  If  the  law  as  it  stands  is  oppres- 
sive or  inequitable,  the  Legislature  which  devised  it  can  alone 
reform  it ;  and  certainly  in  my  judgment,  should  your  Lordships 
feel  yourselves  obliged  to  reverse  the  ruling  of  the  Court  of  Appeal, 
such  a  reform  will  be  needful,  and  should  be  promptly  made,  for 
the  results  of  such  a  reversal  seem  very  serious.  It  would  in- 
volve the  obligation  of  the  owner  to  make  good  damage  done  by  his 
ship,  although,  as  in  this  case,  he  might  be  free  from  blame,  for  any 
imaginable  injury  by  himself,  or  his  servants,  or  in  any  other  way. 
If  necessarily  abandoned  on  the  high  seas  a  thousand  miles  away, 
she  drifts  ashore,  after  long  wandering,  and  does  an  injury;  or,  if 
taken  out  of  his  hands  absolutely  by  a  pirate  or  an  enemy,  she  is 
brought  in  his  absence,  and  against  his  will,  to  attack  the  coast  of 
England ;  or  if,  as  was  put  by  the  Judges  of  the  Appeal  Court,  the 


318  ACCIDENT. 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


undertakers  themselves  shall  have  got  hold  of  tho  vessel,  and  em- 
ployed it  so  as  to  injure  their  own  pier  ;  in  all  these  cases,  and  in 
others  easily  to  be  conceived,  he  would  be  responsible  for  results  to 
which  he  had  not  contributed. 

Now,  no  doubt,  it  is  possible  that  the  Legislature  may  have  con- 
templated for  the  protection  of  harbours,  docks,  and  piers,  an  enact- 
ment fraught  with  consequences  of  this  description  ;  but  before 
we  attribute  to  it  so  strange  a  purpose,  we  are  bound,  I  think,  to 
see  whether  the  phraseology  it  has  used,  taken  together,  does  not 
enable  us  to  reconcile  its  action  with  common  sense  and  common 
justice ;  and  to  say  that  although  it  has  spoken  obscurely,  it  has 
not  made  unavoidable  such  a  very  startling  construction  of  its 
words.  The  case  before  us  is  not  perhaps  quite  so  shocking  as 
those  which  have  been  supposed  to  test  the  effects  of  this  piece  of 
legislation  ;  but  certainly  it  does  seem  hard  that  the  respondents, 
having  had  their  ship  so  injured  by  the  winds  and  waves  on  the 
high  seas  that  the  crew  abandoned  her  to  save  their  lives,  and  she- 
was  derelict,  and  was  forced  by  the  storm  against  the  pier,  should 
not  only  have  lost  her  value  (£10,000),  save  in  so  far  as  she  was 
insured,  but,  in  addition,  nearly  £3000  for  mischief  done,  —  admit- 
tedly without  fault  of  theirs,  and  by  the  "  act  of  God."  We  must 
take  care  that  a  hard  case  shall  not  make  bad  law;  but  we  must 
also  take  care  that  we  do  not  .attribute  to  Parliament  the  intention 
of  injustice  so  very  flagrant  without  coercive  necessity. 

Now,  I  have  come  to  the  conclusion,  though  not  without  serious 
hesitation  and  misgiving,  that  there  is  no  such  necessity,  and  that 
the  Statute,  well  considered,  is  not  applicable  in  the  peculiar  cir- 
cumstances  before  us.  I  do  not  propose  that  your  Lordships  should 
act  on  any  very  large  application  of  the  old  maxim,  "Qui  hceret  in 
litem  hceret  in  cortice,"  or  refuse,  from  any  assumption  of  error  in 
policy  on  the  part  of  the  Legislature,  to  give  effect  to  the  literal 
meaning  of  the  Act,  But  when  we.  pass  from  the  first  clause  of 
the  section,  and  find  it  dealing  with  ':  the  master  or  person  having 
the  charge  of  such  vessel,"  I  think  it  is  indicated  that  "  such  vessel  " 
may  be  taken  to  limit  the  description  of  "  every  vessel "  in  the 
preceding  phrase,  and  to  confine  the  liability  of  the  owner  to- 
vessels  "  in  charge  "  of  a  master  or  somebody  else.  I  do  not  see 
how  we  are  to  give  effect  to  the  word  "  such  "  otherwise  than  by- 
qualifying  the  generality  of  the  preceding  language,  and  holding 
with  MELLISH,  L.  J.,  that  the  section  points  to  something  done  by 
the  act  of  man,  or  to  the  act  of  the  person  in  charge. 


ACCIDENT.  310 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


The  terms  of  the  Statute  appear  to  me  fairly  to  hear  this  inter- 
pretation ;  and  if  they  do,  it  is  manifestly  mure  in  accordance  with 
reason  and  probability  than  that  which  is  opposed  to  it.  In  any 
view  the  provision  is  hard  upon  the  owner,  and  puts  him  in  a 
worse  position  than  he  would  have  held  at  common  law.  But 
there  is  something  comparatively  tolerable  in  the  notion  that  he 
shall  he  responsible  if  an  accident  occurs  when  his  captain  or  some 
one  else  employed  by  him,  acting  for  him  and  under  his  control, 
has  at  least  the  chance  of  avoiding  it.  When  this  chance  is  gone, 
because  the  employes  cease  to  be  in  charge,  and  his  ship  heroines 
an  ungoverned  log,  irresistibly  borne  against  a  pier  without  the 
possibility  of  check  or  guidance,  the  hard  measure  of  liability  for 
an  act  which  is  not  his  nor  his  agent's,  should  not  be  imputed  to 
him  if  there  is  fair  ground  for  thinking  that  the  section  did  not 
contemplate  such  a  state  of  circumstances.  In  the  one  case  it  may 
be  just  that  the  owner  should  answer,  if  the  injury  arises  from  the 
actual  or  presumed  default  of  his  servants,  and  it  may  lie  politic 
to  make  him  careful  in  the  selection  of  them  from  an  apprehen- 
sion of  the  consequences  of  such  an  actual  or  presumed  default. 
In  the  other,  his  utter  and  necessary  powerlessness  to  avert  the 
mischief  should  make  us  slow  to  say  that  he  was  meant  to  answer 
for  it. 

Then  as  to  the  proviso,  it  appears  to  be  reasonably  applicable  on 
the  one  construction  and  not  on  the- other.  If  it  was  meant  that 
the  owner  should  lie  universally  liable  whether  or  no  any  control 
remained  with  him  or  with  his  crew,  how  can  we  account  for  the 
exception  as  to  the  presence  of  the  pilot  ?  The  injury  is  the 
same,  the  instrument  of  the  injury  is  the  same,  and  why,  if  the 
liability  is  to  arise  without  any  regard  to  circumstances  in  all  other 
cases,  although  every  possibility  of  control  or  default  is  absent, 
why  should  the  pilot's  compulsory  employment  exonerate  the 
owner?  On  the  other  hand,  if  the  true  construction  makes  him 
only  liable  when  a  master  or  some  other  person  freely  chosen  by 
himself,  and  on  his  own  responsibility,  is  in  charge,  we  can  see 
good  reason  for  the  exoneration  as  soon  as  the  pilot,  whose  retainer 
is  not  optional,  as  in  the  case  of  his  own  people,  assumes  the 
care  of  a  ship,  and  so  disables  him  from  meddling  with  her  directly 
or  indirectly.  In  the  one  case  there  is  some  control  remaining 
with  him;  in  the  other  there  is  none.  The  law  displaces  the  per- 
son he  had  chosen  to  guide  his  vessel,  and  he  is  made  irresponsible. 


320  ACCIDENT. 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


Why  should  lie  not  be  so  when  the  stress  of  the  storm  has  the 
same  effect,  and  forces  his  captain  and  his  crew  to  abandon  the 
trust  he  had  committed  to  them  ?  The  proviso  appears  to  me  per- 
suasively to  sustain  the  argument  of  the  respondents. 

It  has  been  said  that  unless  the  appellants  prevail  the  statute- 
must  have  failed  of  its  object,  which  was  manifestly  the  greater 
protection  of  the  pier  owners,  because  it  gives  them  nothing  which 
they  had  not  at  common  law.  I  think  that  this  is  a  great  fallacy. 
At  common  law  there  were  serious  questions  continually  arising, 
which,  on  either  construction  of  the  statute,  can  arise  no  more. 
Often  it  was  doubtful  on  whom  liabilities  were  charged,  or  by 
what  evidence  the  charge  of  it  could  be  made  successfully.  We 
can  well  conceive  that  the  undertakers  might  have  found  difficulty 
in  properly  selecting  a  defendant  amid  the  varying  circumstances 
which  affect  the  direction  and  management  of  merchant  vessels, 
and  the  proof  establishing  a  responsibility  must  often  have  been 
hard  to  find  and  inadequate  to  satisfy  a  jury.  I  do  not  know  the 
exact  history  of  the  legislation,  but  in  this  state  of  things  the 
undertakers  may  perhaps  have  reasonably  complained  that,  having 
performed  great  public  service  in  forming  a  harbour,  a  dock,  or  a 
pier,  they  found  themselves  unable  to  recover  for  injuries  confess- 
edly done  to  works  accomplished  with  much  expense  and  labour, 
and  of  the  utmost  importance  to  the  commerce  of  the  country. 
And  the  Legislature  may  have  fairly  said  that  greater  protection 
was  due  to  them  than  they  derived  from  the  law,  which  had  grown 
up  before  that  commerce  and  those  works  had  been  created,  involv- 
ing the  necessity  of  safeguards  theretofore  uncalled  for  and  un- 
known. Accordingly  they  made  the  owner,  a  person  easily  and 
always  to  be  found,  "  answerable  "  as  owner;  and  they  dispensed 
with  the  proof  of  negligence  or  any  other  proof,  save  of  the  injury 
by  the  vessel,  in  all  cases  contemplated  by  the  Act.  This  was  a 
great  change,  and  a  great  addition  to  any  security  which  the  un- 
dertakers enjoyed  at  common  law  ;  and  it  was  so  whether  we  give 
the  clauses  the  universal  force  for  which  the  appellants  contend, 
or  the  more  restricted  application  which,  with  the  Court  of  Appeal, 
T  think  your  Lordships  should  attribute  to  them.  And  in  addition, 
a  further  material  advantage,  unknown  to  the  antecedent  law,  is 
afforded  to  the  undertakers,  who  are  empowered  to  detain  the 
vessel  or  float  of  timber  until  sufficient  security  has  been  given  for 
the  amount  of  damage  done  by  the  same.     These  most  important 


ACCIDENT.  321 

No.  9.  —  River  Wear  Commissioners  v.  Adamson. 

provisions  supply  the  raison  d'etre  for  the  legislation,  whatever  be 
the  issue  of  the  controversy  as  to  the  extent  of  its  action  ;  and  1 
think  it  is  vain  to  allege  that  we  cannot  suggest  for  it  a.  sufficient 
motive  without  straining  its  effect  to  work  confessed  injustice. 

I  do  not  stay  to  consider  the  argument  that  this  construction, 
approved  by  the  Court  of  Appeal,  should  be  rejected  because  a  float 
of  timber  is  not  usually  "  in  charge  "  of  any  one  as  a  vessel  is,  and 
that  Parliament  cannot  therefore  be  supposed  to  have  restricted 
its  view  to  cases  in  which  the  instrument  of  injury  is  derelict. 
The  first  answer  is  that  floats  may  be,  and  are  often,  "in 
charge,"  —  not  perhaps  of  such  a  "  master"  as  governs  a  vessel,  but 
of  other  persons  such  as  the  statute  takes  care  to  mention.  And 
next,  the  statute  deals  with  the  vessel  and  the  float  of  timber, 
quoad  the  "charge"  of  them,  precisely  in  the  same  way;  and  the 
observations  I  have  made  as  to  the  first  will,  if  they  have  force, 
be  equally  applicable  to  the  second. 

My  reasoning  has  not  been  precisely  that  of  the  Court  of  Appeal, 
and  I  have  not  based  it  altogether  upon  the  legal  doctrine  as  to 
the  "  act  of  God."  That  doctrine  is  founded  on  the  view,  which 
commends  itself  alike  to  equity  and  reason,  that  liability  should 
not  be  imposed,  unless  in  special  circumstances,  or  where  public 
interests  imperatively  require  it,  for  consequences  which  are  not 
wrought  by  human  will  or  act,  and  for  which  no  human  being  is 
morally  responsible.  There  are  exceptions  to  its  application,  as 
when  a  man  voluntarily  contracts,  with  full  opportunity  of  antici- 
pating possible  results,  to  do  that  from  doing  which  he  is  disabled 
by  inevitable  accident ;  or  when,  as  is  said,  the  repairing  of  sea- 
walls is  imperative  by  prescription,  and  is  made  impossible  by  such 
accident ;  and  in  various  other  cases.  And  I  am  not  at  all  pre- 
pared to  say  that  the  legislature  has  not  full  power,  if  it  be  so 
minded,  to  declare  that  a  proceeding  it  forbids,  or  a  proceeding  it 
commands,  shall  not  be  justified,  in  the  commission  of  the  one, 
or  the  omission  of  the  other,  because  the  result  was  caused  by  the 
"act  of  God."  A  law  so  providing  we  should  be  bound  to  enforce  ; 
and  if  in  the  case  before  us  the  Statute  was  universally  applicable, 
as  the  appellants  contend,  the  unhappy  shipowner  must  have  sub- 
mitted to  its  hard  infliction.  As  I  have  said,  I  think  that  it  is  not 
so  applicable,  and  that  in  these  circumstances  it  does  not  apply; 
and  it  seems  proper  to  suggest  that  we  should  not,  upon  any  phra- 
seology of  a  doubtful  character,  or  without  the  clearest  and  most 
vol.  r.  — 21 


322  ACCIDENT. 


No.  9.  —  River  Wear  Commissioners   v.  Adamson. 


unequivocal  expression  of  legislative  intention,  or  if  we  may  any- 
wise reasonably  interpret  that  intention  in  another  sense,  assume 
that  a  maxim  so  ancient,  so  well  established,  and  so  accordant  with 
the  common  sense  of  mankind  has  been  set  at  nought  by  the 
Statute  before  us. 

In  the  view  I  have  presented  to  your  Lordships  the  only  case 
cited  as  touching  the  present  has  no  application  to  it.  There  the 
vessel  was  not  derelict,  and  the  owner  may  properly  have  been 
held  liable.  Here,  on  the  other  hand,  in  the  words  of  Pollock,  B., 
"out  on  the  high  seas  she  met  with  certain  risks  and  injuries 
which  compelled  the  crew  to  leave  her,  and  she  became  derelict." 
And  in  my  judgment  she  should  be  dealt  with  as  if  she-  had  been 
abandoned  at  the  Antipodes,  and  had  been  ploughing  the  ocean 
without  a  crew  for  years  before  .she  was  driven  against  the  pier  at 
Sunderland. 

On  the  whole,  I  think  that  the'judgment  of  the  Court  of  Appeal 
should  be  affirmed,  and  this  appeal  dismissed. 

Lord  Blackbukn.  —  I  have  had  very  great  doubt  and  hesitation 
in  this  case,  and  have,  while  considering  it,  changed  the  opinion  1 
at  first  held. 

The  question  raised  depends  upon  the  true  construction  of  three 
sections  of  the  Harbours,  Docks,  and  Piers  Clauses  Act,  1847,  10 
Vict,  c.  27,  —  namely,  the  74th,  75th,  and  76th  sections.  These  are 
part  of  a  set  of  clauses  gathered  together  under  one  head,  —  namely, 
"Protection  of  the  Harbour,  Dock,  and  Pier,  and  the  vessels  lying 
therein,  from  fire  or  other  injury."  I  do  not  think  any  other  clause 
in  the  Act  throws  light  on  the  construction  of  those  sections,  nor 
do  T  think  that  the  construction  put  upon  those  sections  will  have 
any  legitimate  bearing  on  the  construction  of  sections  in  other 
parts  of  the  Act,  though  no  doubt  the  principles  of  construction 
of  statutes  laid  down  by  this  House  in  the  present  case  must 
have,  an  important  effect  on  those  who  have  to  construe  that  or 
any  other  enactment.  It  is  of  great  importance  that  those  prin- 
ciples should  be  ascertained,  and  I  shall  therefore  state  as  precisely 
as  I  can  what  I  understand  from  the  decided  cases  to  be  the  prin- 
ciples on  which  the  courts  of  law  act  in  construing  instruments  in 
writing ;  and  a  statute  is  an  instrument  in  writing. 

In  all  cases  the  object  is  to  see  what  is  the  intention  expressed 
by  the  words  used.  But  from  the  imperfection  of  language  it  is 
impossible    to   know    what   that   intention    is    without    inquiring 


ACCIDENT.  323 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


further,  and  seeing  what  the  circumstances  were  with  reference  to 
which  the  words  were  used,  and  what  was  the  object  appearing 
from  those  circumstances  which  the  person  using  them  had  in 
view;  for  the  meaning  of  words  varies  according  to  the  circum- 
stances with  respect  to  which  they  were  used.  I  do  not  know  that 
I  can  make  my  meaning  plainer  than  by  referring  to  the  old  rules 
of  pleading  as  to  innuendoes  in  cases  of  defamation.  Those  rules, 
though  highly  technical,  were  very  logical.  Xo  innuendo  could 
enlarge  the  sense  of  the  words  beyond  that  which  they  prima, 
facie  bore,  unless  it  was  supported  by  an  inducement  or  preliminary 
averment  of  facts,  and  an  averment  that  the  libel  was  published 
or  the  words  spoken  of  and  concerning  those  facts,  and  of  and  con- 
cerning the  plaintiff  as  connected  with  the  facts.  If  these  prelim- 
inary averments  were  proved,  words  which  prima  facie  bore  a  very 
innocent  meaning  might  convey  a  very  injurious  one,  and  it  was 
for  the  court  to  say  whether,  when  used  of  and  concerning  the 
inducement,  they  bore  the  meaning  imputed  by  the  innuendo. 
See  the  notes  to  Craft  v.  Boite,  1  Wins.  Saund.  24(>.  The  legisla- 
ture has  rendered  it  no  longer  necessary  to  set  out  in  the  record 
the  facts  and  the  colloquium  necessary  to  support  an  innuendo; 
th ey  are  now  only  matter  of  proof  at  the  trial,  but  the  principle 
remains. 

In  construing  written  instruments  I  think  the  same  principle 
applies.  In  the  cases  of  wills  the  testator  is  speaking  of  and 
concerning  all  his  affairs,  and,  therefore,  evidence  is  admissible  to 
show  all  that  he  knew,  and  the  court  has  to  say  what  is  the  in- 
tention indicated  by  the  words  when  used  with  reference  to  those 
extrinsic  facts ;  for  the  same  words  used  in  two  wills  may  express 
one  intention  when  used  with  reference  to  the  state  of  one  testa- 
tor's affairs  and  family,  and  quite  a  different  one  when  used  with 
reference  to  the  state  of  another  testator's  affairs  and  family. 

In  the  case  of  a  contract  the  two  parties  are  speaking  of  certain 
things  only,  and,  therefore,  the  admissible  evidence  is  limited  to 
those  circumstances  of  and  concerning  which  they  use  those 
words.  See  Graves  v.  Legg,  9  Exch.  Eep.  642;  23  Law  J.  Rep. 
Exch.  228.  In  neither  case  does  the  court  make  a  will  or  a 
contract  such  as  it  thinks  the  testator  or  the  parties  wished  to 
make,  but  declares  what  the  intention  indicated  by  the  words  used 
under  such  circumstances  really  is. 

And  this,  as  applied  to  the  construction  of  statutes,  is  no  new 


524  ACCIDENT. 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


doctrine.  As  long  ago  as  Heydon's  Case,  3  Co.  Eep.  7.  Lord  Coke 
says  that  it  was  resolved,  "That  for  the  sure  and  true  interpreta- 
tion of  all  statutes  in  general,  be  they  penal  or  beneficial,  restric- 
tive or  enlarging  of  the  common  law,  four  things  are  to  be 
discerned  and  considered  :  First,  what  was  the  common  law 
before  the  Act  ?  Secondly,  what  was  the  mischief  and  defect  for 
which  the  common  law  did  not  provide  ?  Thirdly,  what  remedy 
the  Parliament  hath  resolved  and  appointed  to  cure  the  disease  of 
the  commonwealth  ?  And,  fourthly,  the  true  reason  of  the  remedy. 
And  then  the  office  of  all  the  Judges  is  always  to  make  such  con- 
struction as  shall  suppress  the  mischief  and  advance  the  remedy." 
But  it  is  to  be  borne  in  mind  that  the  office  of  the  Judges  is  not  to 
legislate,  but  to  declare  the  expressed  intention  of  the  legislature, 
even  if  that  intention  appears  to  the  court  to  be  injudicious;  and  I 
believe  that  it  is  not  disputed  that  what  Lord  Wensleydale  used  to 
call  "the  golden  rule"  is  right,  —  namely,  that  we  are  to  take  the 
whole  statute  together  and  construe  it  all  together,  giving  the 
words  their  ordinary  signification,  unless  when  so  applied  they 
produce  an  inconsistency  or  an  absurdity  or  inconvenience  ,so 
great  as  to  convince  the  court  that  the  intention  could  not  have 
been  to  use  them  in  their  ordinary  signification,  and  to  justify  the 
court  in  putting  on  them  some  other  signification  which,  though 
less  proper,  is  one  which  the  court  thinks  the  words  will  bear.  In 
Allgood  v.  Blake  (L.  R,  8  Exch.  160 ;  42  Law  J.  Eep.  Exch.  101),  in 
the  judgment  of  the  Exchequer  Chamber,  which  I  had  the  honour 
to  deliver,  as  to  the  construction  of  a  will  it  is  said  :  "  The  great 
difficulty  in  all  cases  is  in  applying  these  rules  to  the  particular 
case ;  for  to  one  mind  it  may  appear  that  an  effect  produced  by 
construing  the  words  literally  is  so  inconsistent  with  the  rest  of 
the  will,  or  produces  so  absurd  a  result  or  inconvenience  so  great, 
as  to  justify  the  court  in  putting  on  them  another  signification 
which  to  that  mind  seems  a  not  improper  signification  of  the  words, 
whilst  to  another  mind  the  effect  produced  may  appear  not  so 
inconsistent,  absurd,  or  inconvenient  as  to  justify  putting  any  other 
signification  on  the  words  than  their  proper  one  ;  and  the  proposed 
signification  may  appear  a  violent  construction.  We  apprehend 
that  no  precise  line  can  be  drawn,  but  that  the  court  must  in  each 
case  apply  the  admitted  rules  to  the  case  in  hand,  not  deviating 
from  the  literal  sense  of  the  words  without  sufficient  reason,  or 
more  than  is  justified,  yet  not  adhering  slavishly  to  them  when  to 


ACCIDENT.  325 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


do  so  would  obviously  defeat  the  intention  which  may  be  collected 
from  the  whole  will."  Mutatis  mutandis,  I  think  this  is  applicable 
to  the  construction  of  statutes  as  much  as  of  wills  ;  and  1  think  it 
is  correct. 

In  local  and  personal  Acts  there  was  found  to  be  great  incon- 
venience from  the  clauses  being  framed  according  to  the  views  of 
the  promoter's  counsel,  and,  consequently,  being  very  differently 
worded.;  and  to  remedy  this  a  practice  arose  of  obliging  the  pro- 
moters to  submit  their  bills  to  the  revision  of  the  Chairman  of 
Committees,  who  required  them  to  make  their  clauses  in  the  form 
he  had  approved  of,  unless  some  good  reason  was  shown  for  deviat- 
ing from  it.  These  forms  of  clauses  were  well  known,  and  the 
research  which  my  noble  and  learned  friend  opposite  (Lord  Gor- 
don) has  made,  shows  that  in  the  Harbour  Acts,  passed  in  1846,  the 
common  form  of  the  clause  used  was  in  the  words  of  what  is  now 
section  74  of  the  Harbours,  Docks,  and  Piers  Clauses  Act,  1847,  but, 
except  in  one  instance,  without  a  proviso  similar  to  that  at  the 
end  of  it.  That  shows,  what  the  frame  of  the  section  would  have 
led  one  to  guess,  that  the  proviso  was  an  after-thought,  added  to 
the  enactment  after  it  had  been  adopted.  The  preamble  of  the 
Harbours,  Docks,  and  Piers  Clauses  Act  declares  that  it  is  passed 
for  the  purpose  of  comprising  in  one  Act  the  clauses  usually  con- 
tained in  Harbour  and  Pier  Acts  for  the  purpose  of  avoiding  pro- 
lixity and  producing  uniformity  ;  ami  the  clause  in  question  is 
one  of  a  series  for  the  "protection  of  the  harbour,  docks,  and  pier, 
and  the  vessels  lying  therein,  from  fire  or  other  injury." 

The  first  inquiry  for  your  Lordships  is,  Are  we  justified  in  putting 
a  different  construction  on  the  words  of  an  Act  passed  at  the 
instance  of  particular  promoters  from  that  which  would  be  put 
on  similar  words  in  a  general  Act?  To  some  extent  I  think  we 
are.  If  in  a  local  and  personal  Act  we  found  words  that  seemed 
to  express  an  intention  to  enact  something  quite  unconnected  with 
the  purpose  of  the  promoters,  and  which  the  Committee  would  not, 
if  they  did  their  duty,  have  allowed  to  be  introduced  into  such  an 
Act,  I  think  the  Judges  would  be  justified  in  putting  almost  any 
construction  on  the  words  that  would  prevent  them  from  having 
that  effect.  But  I  do  not  think  it  impossible  that  the  legislature 
can  have  intended  in  such  an  Act  to  create  a  new  liability  to  dam- 
ages unknown  at  common  law.  The  creation  of  such  a  liability 
would  be  in  direct  furtherance  of  the  declared  object  of  the  enact- 


326  ACCIDENT. 


No.  9. — River  Wear  Commissioners  v.  Adamson. 


merit,  —  the  protection  of  the  piers  from  injury.  And  in  every 
construction  of  the  enactment  in  question  which  I  have  heard 
suggested  the  legislature  does  impose  on  the  owners  a  liability 
for  damages  occasioned  by  persons  for  whom  they  would  not  be 
liable  at  common  law.  At  present  I  cannot  see  my  way  to  limit- 
ing the  words  of  this  Act,  more  than  in  a  general  Act ;  but  I  think 
that  neither  in  a  general  Act  nor  in  a  special  Act  could  the  legis- 
lature have  meant  to  shift  the  burden  of  a  misfortune  befalling  the 
owner  of  a  pier  from  the  owner  of  a  pier,  who  at  common  law  would 
bear  it,  to  the  owner  of  a  ship  wholly  free  from  blame,  and  involved 
without  fault  of  his  in  a  common  misfortune.  It  may  have  been 
said,  but  it  can  hardly  have  been  intended  to  be  said. 

The  common  law  is,  I  think,  as  follows:  Property  adjoining  a 
spot  in  which  the  public  have  a  right  to  carry  on  traffic  is  liable  to 
be  injured  by  that  traffic.  In  this  respect  there  is  no  difference 
between  a  shop,  the  railings  or  windows  of  which  may  be  broken 
by  a  carriage  on  the  road,  and  a  pier  adjoining  a  harbour,  or  a  navi- 
gable river,  or  the  sea,  which  is  liable  to  be  injured  by  a  ship.  In 
either  case  the  owner  of  the  injured  property  must  bear  his  own 
loss,  unless  he  can  establish  that  some  person  is  liable  to  make  it 
good;  and  he  does  not  establish  this  against  a  person  merely  by 
showing  that  he  is  owner  of  the  carriage  or  ship  which  did  the 
mischief,  for  that  owner  incurs  no  liability  merely  as  owner;  but 
he  does  establish  such  a  liability  against  any  person  who  either 
wilfully  did  the  damage  or  neglected  that  duty  which  the  law 
casts  upon  those  in  charge  of  a  carriage  on  land  and  a  ship  or  a 
float  of  timber  on  water  to  take  reasonable  care  and  use  reasona- 
ble skill  to  prevent  it  from  doing  injury;  and  that  this  neglect 
caused  the  damage.  And  if  he  can  prove  that  the  person  who  has 
been  guilty  of  this  negligence  stood  in  the  relation  of  servant  to 
another,  and  that  the  negligence  was  in  the  course  of  his  employ- 
ment, he  establishes  a  liability  against  the  master  also.  In  the 
great  majority  of  cases  the  servant  actually  guilty  of  the  negli- 
gence is  poor  and  unable  to  make  good  the  damage  if  it  is  con- 
siderable, and  the  master  is  at  least  comparatively  rich,  and 
consequently  it  is  generally  better  to  fix  the  master  with  liability; 
but  there  is  also  concurrent  liability  in  the  servant,  who  is  not  dis- 
charged from  liability  because  his  master  also  is  liable.  And  in  a 
very  large  number  of  cases  the  owner  of  the  carriage,  or  ship,  or 
float  of  timber,  is,  or  at  least  is  supposed  to  be,  the  master  of  those 


ACCIDENT.  32' 


No.  9.  —  River  Wear   Commissioners   v.  Adamson. 


who  were  negligent;  and  consequently  the  action  is  most  frequently 
brought  against  the  owner,  and  is  very  often  successful.  But  the 
plaintiff  succeeds,  not  because  the  defendant  is  owner  of  the  car- 
riage, or  ship,  or  Moat  of  timber,  hut  because  those  who  were  guilty 
of  the  negligence  were  his  servants. 

1  have  stated  the  law  with  particularity,  because  I  think  it 
important  to  have  it  clearly  before  us.  What  1  have  said  is  really 
a  statement  of  the  law  as  laid  down  by  PARKE,  B.,  in  delivering  the 
judgment  of  the  Exchequer  in  Quantum  v.  Burnett  (9  Law  .1.  Rep. 
Exch.  308;  6  Mec.  &  W.  499),  where  the  plaintiff  was  nonsuited 
because  the  defendants,  though  owners  of  the  carriage  and  actually 
seated  in  it  at  the  time  of  the  accident,  were  not  the  mistresses  of 
the  coachman  whose  negligence  caused  the  accident.  I  have  al- 
ready said  that  in  the  ordinary  course  of  things  those  employed 
about  a  ship  are  the  servants  of  the  owners;  and  in  Hibbs  v.  Boss 
(Law  Eep.  1  Q.  B.  534;  35  Law  J.  Eep.  Q.  B.  193),  the  majority  of 
the  Court  of  Queen's  Bench  thought  this  was  so  much  the  case  that 
proof  of  ownership  in  the  defendant  was  ■prima  facie  that  they 
were  his  servants,  calling  on  him  to  prove  an  exceptional  state  of 
things  in  which  they  were  not  his  servants.  A  case  very  likely  to 
occur  in  a  harbour  in  which  this  would  be  disproved  would  be  where 
the  ship  was  put  in  the  hands  of  a  shipwright  to  be  repaired,  and 
the  shipwright's  servants,  in  moving  her  into  a  graving  dock,  neg- 
ligently did  mischief.  The  owner  would  not  there  be  liable  at 
common  law.  Where  the  owner  of  a  ship  is  compelled  to  take 
a  pilot  on  board,  that  pilot  is  not  the  servant  of  the  owner,  and  he 
is  not  liable  for  the  negligence  of  that  pilot ;  but  the  captain  and 
crew  remain  his  servants,  and  he  is  liable  for  their  negligence 
though  a  pilot  is  on  board.  Where  no  one  is  to  blame,  —  as  where 
the  damage  is  occasioned  by  inevitable  accident,  —  the  loss,  at  com- 
mon law,  was  borne  by  the  owner  of  the  property  injured.  And 
lastly,  the  person  injured  has  at  common  law  no  lien  on  the  ship, 
but  only  a  right  of  action  against  the  person  to  blame;  and  also, 
if  he  was  a  servant,  against  his  employer. 

Beading  the  words  of  the  enactment,  and  bearing  in  mind  what 
was  the  state  of  the  law  at  the  time  when  it  was  passed,  it  seems 
to  me  that  the  object  of  the  legislature  was  to  give  the  owners  of 
harbours,  docks,  and  piers  more  protection  than  they  had.  It  seems 
to  have  occurred  to  those  who  framed  the  statute  that  in  most 
cases  where  an  accident  occurs  it  is  from   the  fault  of  those  who 


328  ACCIDENT. 


No.  9.  —  River  Wear  Commissioners   v.  Adamson. 


were  managing  the  ship,  and  in  most  cases  those  are  the  servants 
of  the  owners  ;  but  that  these  were  matters  which  in  every  case 
must  be  proved,  and  that  consequently  there  was  a  great  deal  of 
litigation  incurred  before  the  owner,  though  he  really  was  liable, 
could  be  fixed.  And  with  a  view  to  meet  this,  the  remedy  proposed 
was  that  the  owner,  who  was  generally  really  liable,  —  though  it 
was  difficult  and  expensive  to  prove  it,  —  should  be  liable,  without 
proof,  either  that  there  wTas  negligence,  or  that  the  person  guilty 
of  neglect  was  the  owner's  servant,  or  proving  how  the  mischief 
happened  ;  and  this  is  expressed  by  saying  that  the  owner  "  shall 
be  answerable  for  any  damage  done  by  the  vessel  or  by  any  person 
employed  about  the  same  "  to  the  harbour.  It  seems  to  have  been 
suggested  that  where  a  compulsory  pilot  was  on  board  the  mischief 
might  very  well  be  by  his  fault,  and  the  presumption  on  which 
they  acted  —  that  mischief  was  generally  due  to  the  fault  of  the 
owner's  servants  —  did  not  arise.  This  case,  therefore,  was  by  the 
proviso  taken  out  of  the  enactment  of  the  common  law.  As  to 
the  possible  case  of  the  mischief  being  occasioned  by  the  servants 
of  a  shipwright  or  some  other  substantial  person,  it  seems  to  have 
been  thought  enough  to  give  the  owner  the  remedy  over  provided 
by  section  76.  As  to  the  cases  in  which  the  fault  was  that  of 
some  person  not  able  to  make  compensation,  for  whom  the  ship- 
owner was  not  at  common  law  responsible,  it  may  have  been 
thought  that  the  cases  would  occur  so  seldom,  or  when  they  oc- 
curred would  probably  be  of  such  small  amount,  that  the  shifting 
of  the  loss  from  the  owner  of  the  property  to  the  owner  of  the 
ship  was  not  too  high  a  price  to  pay  for  the  saving  of  litigation 
and  expense.  The  cases  of  a  common  misfortune  befalling  both 
ship  and  pier,  without  fault  of  either,  seems  not  to  have  been 
thought  of.  At  all  events,  no  exemption  or  proviso  to  take  these 
cases  out  of  the  general  enactment  is  given  in  express  words. 

On  reading  the  words  of  the  enactment  I  am  brought  to  the 
conclusion  that  such  was  the  scheme  of  legislation  adopted  by 
Parliament,  —  the  mischief  being  the  expense  of  litigation  ;  the 
remedy,  that  the  owners  should  be  liable  without  proof  of  how 
the  accident  occurred.  And  if  it  had  been  confined  to  cases  in 
which  the  damages  were  under  .£50,  and  might  be  recovered  before 
two  justices  under  section  75,  I  think  It  would  be  a  scheme  of 
legislation  against  which  no  very  serious  objection  could  be  raised. 
Dennis  v.  Tovell  (L.  R.,  8  Q.  B.  10;  42  L.  J.,  M.  C.  33)  was  a  ease 


ACCIDENT.  329 

No.  9.  —  Kiver  Wear  Commissioners  v.  Adamson. 

under  £50  raised  in  the  County  Court,  and  brought  by  appeal 
before  the  Court  of  Queen's  Bench.  Without  bestowing  so  much 
consideration  on  the  ease  as  I  have  now  done,  1  joined  in  the  judg- 
ment of  the  court,  which  I  have  for  a  long  time  thought  right,  and 
now  dissent  from  with  great  trouble  and  hesitation.  It  is  impossi- 
ble, however,  to  put  any  limit  on  the  amount.  The  shipowner, 
if  liable  at  all  under  this  statute,  is  personally  liable  to  his  last 
farthing  for  the  whole  damage,  however  great  and  however  small 
may  be  the  value  of  the  ship.  In  the  present  case  the  amount  is 
£2825,  and  if  the  statute  transfers  the  liability  for  so  large  a  sum 
from  the  plaintiffs  to  the  defendants,  who  have  done  nothing  wrong, 
there  is  no  doubt  it  is  a  hard  ease  on  the  defendants.  There  is  a 
legal  proverb  that  hard  eases  make  bad  law;  but  I  think  there  is 
truth  in  the  retort  that  it  is  a  bad  law  which  makes  hard  eases. 
And  I  think  that  before  deciding  that  the  construction  of  the  statute 
is  such  as  to  make  this  hardship,  we  ought  to  be  sure  that  such  is 
the  construction,  —  more  especially  when  the  hardship  affects  not 
only  one  individual,  but  a  whole  class. 

I  have  therefore  examined  the  reasons  given  by  the  various 
Judges  in  the  Court  of  Appeal,  with  a  wish  to  find  that  some  of 
them  would  in  my  mind  justify  the  conclusion  to  which  they  have 
come  in  favour  of  the  defendants.  And  I  have  tried  to  find  some 
ground  which  had  escaped  their  notice  in  which  I  could  advise  your 
Lordships  to  uphold  that  decision,  but  for  a  long  time  without 
success.  It  is  quite  true  that  where  a  duty  is  imposed  by  law,  if 
the  performance  of  the  duty  is  rendered  impossible  by  the  "  act 
of  God  or  the  King's  enemies,"  the  non-performance  of  the  duty  is 
excused.  Paradine  v.  Jane,  Aleyn,  26,  which  is  the  case  generally 
cited  for  that  position,  is  one  in  which  the  point  did  not  arise. 
That  case  was  one  in  which  it  was  attempted  to  argue  that  the 
duty  imposed  by  the  contract  to  pay  rent  was  subject  to  a  condition 
that  the  tenant  was  not  evicted  by  the  "act  of  God,"  or  other  vis 
major,  and  the  really  important  part  of  the  decision  is,  that  where 
a  contract  is  made  which  does  not  either  expressly  or  implicitly 
except  the  "  act  of  God,"  the  courts  could  not  introduce  that  excep- 
tion by  intendment  of  law;  and  that  makes  strongly  against  the 
supposition  that  in  construing  a  statute  where  the  legislature 
might  have  expressed,  but  did  not  express,  such  an  exception,  the 
court  should  introduce  it.  And  there  is  no  case  cited,  and,  as  far 
as  I  can  find,  no  case  exists  in  which  such  a  doctrine  is  laid  down. 


330  ACCIDENT. 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


In  Latless  v.  Holmes,  4  Term  Eep.  660,  where  an  Act,  which  re- 
ceived the  Royal  assent  in  May,  by  fiction  of  law  related  back  to  the 
first  day  of  the  session  in  October,  it  was  held  to  apply  to  a  trans- 
action occurring  between  October  and  May.  This  was  contrary 
to  two  legal  maxims,  — that  a  fiction  of  law  should  never  be  used 
to  work  injustice,  and  that  the  law  compels  no  one  to  do  an  impos- 
sibility ;  but  the  words  of  the  enactment  were  too  plain,  and  the 
court  was  obliged  not  only  to  work  great  hardship,  but,  in  the  par- 
ticular case,  great  injustice.  And  in  the  present  case,  if  the  object 
of  the  statute  be,  as  Pollock,  B.  says,  and  as  I  think  it  is,  with  a 
view  to  avoid  expense  and  delay,  that  the  owners  of  the  docks  are 
not  to  be  put  to  the  proof  of  negligence,  or  to  the  proof  of  how 
the  injury  was  occasioned,  that  object  would  be  to  some  extent 
less  effectually  carried  out  by  importing  such  an  exception,  which 
is  certainly  not  expressed  in  terms. 

Still  there  remains  the  question  whether  the  hardship  produced, 
and  the  injustice  worked,  is  so  great  as  to  justify  the  court  in 
putting  any  meaning  on  the  words  which  they  will  bear,  in  order 
to  avoid  it.  Both  Mellish,  L.  J.,  and,  as  I  understand  him,  the 
Lord  Chancellor,  have  thought  that  the  words  maybe  construed 
so  as  to  make  the  owner  of  the  ship  answerable  only  for  damages 
occasioned  by  the  act  of  man,  —  damages  for  which  someone  is 
answerable  at  common  law.  I  have  already  said  that  the  question 
whether  words  can  bear  a  secondary  sense  different  from  the  usual 
one,  is  one  on  which  different  minds  differ.  I  a  the  present  case,  I 
feel  no  doubt  that  the  bardship  is  great  enough  to  justify  putting 
a  considerable  strain  on  the  words  to  avoid  it;  for  I  feel  certain 
that  if  the  enactment  has  the  effect  of  shifting  the  burthen  of  a 
misfortune  to  the  piers  from  the  owners  of  the  property,  who  at 
common  law  would  have  borne  it,  to  the  owners  of  the  ship,  who 
are  free  from  all  blame,  it  is  an  unforeseen  consequence  of  the 
words  used,  —  which  words,  if  the  consequence  had  been  foreseen, 
would  not  have  been  used  in  the  enactment, 

I  cannot  see  anything  in  the  language  of  the  Act  to  justify  what 
was  the  opinion  of  some  of  the  Judges  of  Appeal,  and  is,  I  think, 
adopted  by  Lord  0'Haga.n,  that  it  is  confined  to  cases  in  which 
some  one  is  in  charge  of  the  ship,  even  if  that  exception  could 
save  the  defendants,  which  I  do  not  think  it  would.  The  defen- 
dants were  by  their  servants  in  possession  of  the  ship  when  it 
drove  on  the  bank.     It  did  not  strike  the  pier  till  the  rising  tide 


ACCIDENT.  331 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


floated  it  in,  but  it  was  all  one  transaction  ;  and  when  it  struck,  it 
was  still  a  ship,  and  the  defendants  were  still  its  owners.  It  is 
not  necessary  to  inquire  when  and  under  what  circumstances  that 
which  was  once  a  ship  becomes  a  mere  congeries  of  planks,  to 
which  the  statute  would  not  apply,  further  than  to  say  this  ship 
cannot  be  treated  as  having  become  such,  nor  was  it  in  my  opinion 
in  any  sense  a  derelict. 

After  much  hesitation  and  doubt,  I  am  not  prepared  to  say  that 
this  judgment  should  be  reversed.  I  am  not  prepared  to  say  that 
the  words  "damage  done  by  the  ship,"  as  used  in  this  enactment, 
necessarily  include  all  expenses  occasioned  by  misfortune  in  which 
the  ship  was  involved  in  common  with  the  piers.  Mellish,  L.  J., 
seems  to  have  thought  that  these  words  might  bear  the  more 
restricted  sense  of  injuria  cum  damno.  The  declared  object  of 
the  enactment  is  the  protection  of  the  piers,  &c,  from  "  injury," 
which  renders  this  construction  a  little  less  violent  than  if  the 
object  had  been  expressed  to  be  to  protect  the  harbour  authorities 
from  "  loss."  If  they  can  bear  that  sense,  we  ought  so  to  construe 
them ;  and  though  I  have  had  and  have  great  doubt  whether  this 
is  not  too  violent  a  construction,  I  am  not  prepared  to  reverse  the 
judgment  based  on  it;  and  consequently  I  agree  that  the  appeal 
should  be  dismissed  with  costs. 

Lord  Gordon.  The  opinion  which  I  have  formed  in  this  case 
differs  from  that  at  which  the  majority  of  your  Lordships  and  the 
Lords  Justices  of  Appeal  have  arrived.  1  incline  to  the  opinion  of 
the  Court  of  Queen's  Bench.  Having  regard  to  the  great  weight 
due  to  the  opinions  which  have  been  expressed  by  your  Lordships, 
and  also  to  the  great  weight  due  to  the  opinions  of  the  Lords 
Justices  of  Appeal,  both  in  their  collective  and  in  their  individual 
capacity, I  feel  great  distrust  in  my  own  opinion.  But  I  have  con- 
sidered the  case  with  great  anxiety,  not  only  in  consequence  of 
the  views  entertained  by  your  Lordships,  but  also  in  consequence 
of  the  case  involving  the  construction  to  be  put  upon  a  section  of 
an  act  of  Parliament,  —  a  matter  which  it  is  of  importance  should 
not  be  subject  to  conflicting  views,  founded  upon  supposed  expedi- 
ency ;  and  I  feel  that  it  is  my  duty  to  explain  more  fully  than  i 
should  otherwise  do  the  grounds  upon  which  I  venture  to  dissent 
from  the  opinions  which  have  been  expressed  by  your  Lordships, 
although  I  am  aware  that  my  doing  so  will  have  no  practical  effect 
upon  the  decision  of  this  case. 


332  ACCIDENT. 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


The  question  relates  to  the  application  of  the  provisions  of  an 
Act  passed  fur  consolidating  certain  provisions  usually  contained 
in  special  Acts  authorising  the  making  and  improving  of  harbours, 
docks,  and  piers.  It  is  a  British  statute,  applicable  to  Scotland  as 
well  as  England,  and  its  provisions  are  of  much  importance.  The 
question  in  this  appeal  arises  out  of  the  leading  enactment  of  the 
74th  section,  which  [his  Lordship  then  read  the  section  and  con- 
tinued]. The  enactment  is  general  and  express,  that  the  owner  of 
every  vessel  causing  damage  to  harbours,  &c,  shall  be  answerable 
for  such  damage,  except  in  the  single  case  where  the  vessel  is  in 
charge  of  a  pilot;  and  the  question  which  your  Lordships  have  to 
consider  is,  whether  the  words  of  the  section  are  to  lie  read  and 
applied  in  their  ordinary  common  sense  meaning,  or  whether  there 
is  to  be  imported  into  the  statute  another  exception  than  the 
express  exception  it  contains,  relieving  the  owner  of  a  ship  which 
at  the  time  the  damage  occurred  was  in  charge  of  a  duly  licensed 
pilot,  an  exception,  namely,  from  liability  in  cases  where  the  dam- 
age was  caused  by  the  vessel  through  the  "  act  of  God,"  or,  as  it  is 
sometimes  expressed,  vis  major. 

It  may  be  mentioned  that  this  section  was  the  subject  of  con- 
sideration in  the  case  of  Dennis  v.  Tovell,  cit.  p.  309,  ante.  That 
case,  having  involved  a  sum  under  £50,  was  decided  in  the  County 
Court,  but  was  taken  on  appeal  before  the  Court  of  Queen's  Bench, 
who  dismissed  the  appeal.  That  previous  decision  of  the  Queen's 
Bench  prevented  that  court  from  reconsidering  the  section  in  the 
present  case,  and  leave  was  granted  by  the  court  to  appeal  to  the 
Lords  Justices,  which  led  to  their  Lordships'  judgment,  —  the  sub- 
ject of  the  present  appeal  to  your  Lordships'  House. 

The  exemption  from  liability  on  the  part  of  the  owner  when  his 
vessel  is  under  the  charge  of  a  licensed  pilot  may,  it  appears  to 
me,  be  regarded  as  strengthening  the  express  words  of  the  leading 
enactment  of  the  74th  section,  in  accordance  with  the  maxim, 
exceptio  probat  regulam.  The  first  consideration  to  be  attended  to 
in  reading  the  clause  judicially  is  whether  the  words  are  express, 
intelligible,  grammatical,  and  unambiguous.  I  submit  for  your 
Lordships'  judgment  that  they  have  all  these  characteristics.  In 
my  humble  opinion  the  word  "answerable"  is  merely  an  equiva- 
lent for  "liable;"  and  I  observe  that  their  Lordships  in  the  Court 
of  Appeal  deal  with  the  expression  as  having  that  meaning,  and 
no  argument  was  addressed  to  your  Lordships  from  the  bar,  on  the 


ACCIDENT.  333 


No.  9.  —  River  Wear  Commissioners   v.  Adamson. 


part  of  the  respondents,  to  show  that  the  word  was  capable  of  any 
other  construction.  I  think  the  section  in  question  itself  shows 
that  the  words  are  synonymous.  For  while  it  enacts  that  the 
owner  shall  be  "answerable,"  it  likewise  enacts  that  the  owner  or 
person  in  charge  shall,  "  also  in  cases  of  negligence,  be  liable ; " 
and  then  it  provides  that  "  nothing  herein  contained  shall  extend 
to  impose  any  liability  for  any  such  damage  upon  the  owner " 
where  the  vessel  shall  be  in  charge  of  a  pilot. 

The  next  matter  for  consideration  is,  what  are  the  duty  and 
province  of  a  court  of  law,  when  ascertaining  what  effect  is  to  be 
given  to  the  section,  which  in  my  opinion  is  of  the  express  and 
unambiguous  character  already  stated;  and  in  expressing  an  opin- 
ion upon  this  question,  your  Lordships  are  at  present  officiating, 
"not  in  your  legislative  character,  but  as  the  Supreme  Court  of 
Appeal,  in  a  judicial  capacity.  Blackstone,  the  highest  constitu- 
tional and  legal  authority  with  reference  to  the  law  of  England, 
when  treating  of  statute  law  states  (vol.  i.  p.  89):  "Where  the 
common  law  and  statute  differ,  the  common  law  gives  place  to  the 
statute  ;  "  and  again  (p.  91),  "  If  the  Parliament  will  positively  enact 
a  thing  to  be  done  which  is  unreasonable,  I  know  of  no  power  in 
the  ordinary  forms  of  the  constitution  that  is  vested  with  authority 
to  control ;  and  the  examples  usually  alleged  in  support  of  this 
sense  of  the  rule  do  none  of  them  prove  that  wdrere  the  main 
object  of  a  statute  is  unreasonable,  the  Judges  are  at  liberty  to 
reject  it,  for  that  were  to  set  the  judicial  power  above  that  of 
the  legislature,  which  would  be  subversive  of  all  government." 

In  the  case  of  Birhs  v.  Allison  (13  Com.  B.  Eep.  N.  S.  23;  32 
Law  J.  Eep.  C.  P.  51),  Byles,  J.,  stated  that  the  general  rule  for  the 
construction  of  acts  of  Parliament  is,  that  the  words  are  to  be 
read  in  that  popular,  natural,  and  ordinary  sense  giving  them  a 
meaning  to  their  full  extent  and  capacity,  unless  there  is  reason 
upon  their  face  to  believe  that  they  were  not  intended  to  bear  that 
construction,  because  of  some  inconvenience  which  could  not  have 
been  absent  from  the  mind  of  the  framers  of  the  Act,  which  must 
arise  from  the  giving  them  such  a  large  sense.  Jervis,  C.  J.,  in  the 
case  of  Abley  v.  Dale,  11  Com.  B.  Rep.  391 ;  21  Law  J.  Rep.  C.  P. 
104,  stated:  "If  the  precise  words  used  are  plain  and  unambigu- 
ous, in  our  judgment  we  are  bound  to  construe  them  in  their  ordi- 
nary sense,  even  though  it  do  lead,  in  our  view  of  the  case,  to  an 
absurdity  or  manifest  injustice.     Words  may  be  modified  or  varied 


534  ACCIDENT. 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


where  their  import  is  doubtful  or  obscure,  but  we  assume  the 
function  of  legislators  when  we  depart  from  the  ordinary  meaning 
of  the  precise  words  used,  merely  because  we  see,  or  fancy  we 
see,  an  absurdity  or  manifest  injustice  from  an  adherence  to  their 
literal  meaning."  Ckesswell,  J.,  in  the  case  of  Biffin  v.  York,  6 
Scott  (N.  S.),  235;  12  Law  J.  Eep.  C.  P.  162,  states:  "It  is  a 
good  rule  in  the  construction  of  acts  of  Parliament  that  the 
Judges  are  not  to  make  the  law  what  they  may  think  reasonable, 
but  to  expound  it  according  to  the  common  sense  of  its  words." 
In  a  recent  case  before  your  Lordships'  House,  Hutton  v.  Harper, 
L.  P.,  1  App.  Cas.  4G4,  where  the  construction  of  a  statute  inci- 
dentally arose,  Lord  0'Ha.GAN  said,  "  The  argument  from  inconve- 
nience is  not  to  be  lightly  entertained,  and  never  for  the  purpose 
of  construing  a  statute  which  is  clear  in  its  terms,  and  indicates' 
unmistakably  the,  purpose  of  the  legislature.  When  the  words 
are  obscure,  and  the  purpose  therefore  more  or  less  doubtful,  it 
may  help  to  a  right  understanding  of  them." 

The  Lords  Justices  of  Appeal,  without  stating  that  the  leading 
enactment  of  section  74  is  not  express,  or  is  even  ambiguous,  gave 
effect  to  the  present  respondent's  contention,  that  the  statute  must- 
be  read  as  if  it  contained  an  express  provision  that  the  liability  for 
damage  should  not  attach  to  the.  owner  where  the  damage  had 
been  caused  by  what  is  called  the  "  act  of  God,"  which,  in  the 
present  case,  means  stress  of  weather.  Their  Lordships  proceeded 
upon  the  ground  that  such  an  exception  applies  to  all  cases  where 
a  duty  is  imposed,  unless  expressly  included,  and  they  held  that 
the  same  rule  was  applicable  to  acts  of  Parliament,  and,  further, 
that  it  could  not  have  been  the  intention  of  the  legislature,  with 
reference  to  the  statute  in  question,  to  impose  what  their  Lordships 
regard  as  an  unjust  liability  upon  owners  guilty  of  no  fault  or  neg- 
ligence. But  no  authority  has  been  referred  to,  either  by  their 
Lordships  or  in  argument  from  the  bar,  warranting  the  introduc- 
tion of  such  a  qualification  ;  and,  after  a  careful  search,  I  have  been 
unable  to  find  any  either  in  the  law  of  England  or  of  Scotland.  It 
has  been  argued  by  the  respondents  that  the  introduction  of  such 
an  extension  of  the  owner's  liability  must  be  qualified  by  the 
implied  condition  freeing  them  from  such  liability  where  the  dam- 
age was  occasioned  by  the  "  act  of  God,"  in  order  to  give  what  is 
called  a  "  reasonable  construction "  tp  the  statute  itself.  With 
regard  to  the  supposed  intention  of  the   legislature  to  express  the 


ACCIDENT.  335 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


terms  of  the  Act,  subject  to  the  implied  condition,  I  may  observe 
that  MelliSH,  L.  J.,  said,  "  I  think,  taking'  the  language  of  the  sec- 
tion, it  was  clearly  the  intention  of  the  legislature  to  extend  the 
liability  of  the  owners  of  vessels  in  favour  of  the  owners  of  piers 
and  harbours,  beyond  the  liability  which  is  imposed  on  them  by 
common  law,  because,  if  that  is  not  the  intention,  it  is  not  easy  to 
see  the  object  of  the  section  at  all."  This  is  very  high  authority 
for  presuming,  in  so  far  as  it  may  be  relevant  or  competent  to  do 
so,  what  was  the  intention  of  the  legislature  in  passing  the  Act, 
although  I  submit  that,  where  the  terms  of  an  Act  are  clear  and 
unambiguous  in  the  language  of  the  enacting  clause,  these  terms 
cannot  be  controlled  by  any  supposed  intention  which  may  be  pre- 
sumed to  have  influenced  the  legislature,  or  by  consideration  of 
the  injustice  of  the  result  of  the  express  terms  used  in  the  enact- 
ing clause. 

In  the  Sussex  Peerage  0<(sc,  11  CI.  &  F.  143,  the  Committee  for 
Privileges  of  this  House  desired  the  opinion  of  the  Judges,  which 
was  given  and  was  unanimous.  The  opinion  was  delivered  by 
Tixdal,  C.  J. ;  in  the  course  of  it  he  said,  "  The  only  rule  for  the 
construction  of  acts  of  Parliament  is  that  they  should  be  construed 
according  to  the  intent  of  the  Parliament  which  passed  the  Act.  If 
the  words  of  the  statute  are  in  themselves  precise  and  unambigu- 
ous, then  no  more  can  be  necessary  than  to  expound  those  words 
in  their  natural  and  ordinary  sense.  The  words  themselves  alone 
do  in  such  case  best  declare  the  intention  of  the  lawgiver."  The 
opinion  delivered  by  the  Lord  Chief  Justice  was  approved  of  by 
theLord  Chancellor  (Lyndhurst),  and  by  Lords  Brougham, Cotten- 
ham,  Dexmax,  and  Campbell.  And  in  the  case  of  Fordyce  v. 
Bridges,  1  II.  L.  Cas.  1,  in  this  House,  with  reference  to  the  con- 
struction of  the  Apportionment  Act,  the  provisions  of  which  it 
was  argued  were  quite  inapplicable  to  the  law  of  Scotland,  Lord 
BROUGHAM  stated  :  "  We  must  construe  this  statute  by  what  appears 
to  have  been  the  intention  of  the  legislature.  But  we  must  ascer- 
tain that  intention  from  the  words  of  the  statute,  and  not  from  any 
general  inferences  to  be  drawn  from  the  nature  of  the  objects  dealt 
with  by  the  statute." 

I  think,  in  accordance  with  these  authorities,  that  in  such  a  case 
as  the  present,  where  the  words  are  clear  and  distinct,  we  must 
judge  of  the  intention  of  the  legislature  from  the  words  of  the  Act 
itself.      But,  if  it  were  relevant  or  competent  to   speculate  as  to 


336  ACCIDENT. 


No.  9.  —  River  Wear  Commissioners  v.  Adamson. 


what  truly  may  have  been  the  intention  of  the  legislature  in  pass- 
ing the  74th  section,  apart  from  the  words  of  the  statute,  it  appears 
to  me,  with  great  deference,  that  it  may  have  been,  amongst  others, 
to  give  that  amount  of  protection  to  the  owners  of  piers,  &c,  which 
the  words  of  the  section  clearly  imply,  and  so  relieve  them  from  the 
often  difficult  questions  of  evidence  as  to  whether  the  damage  was 
caused  by  the  fault  or  negligence  of  owners  of  vessels,  or  their  ser- 
vants, in  which  cases  there  would  be  no  doubt  of  their  liability 
apart  from  the  words  of  the  statute. 

It  seems  to  me  to  be  not  unimportant,  in  considering  the  inten- 
tion, to  consider  the  course  of  legislation  with  reference  to  the  Acts 
for  the  construction  of  piers  and  harbours,  prior  to  the  passing  of 
the  Consolidating  Act,  with  which  your  Lordships  are  now  dealing. 
That  Act  was  passed,  as  the  preamble  states,  because  it  was  expedi- 
ent to  comprise  in  one  Act  sundry  provisions  usually  contained  in 
acts  of  Parliament  authorising  the  construction  or  improvement  of 
harbours,  docks,  and  piers,  and  that  as  well  for  avoiding  the  neces- 
sity of  repeating  such  provisions  in  each  of  the  several  Acts  relat- 
ing t<>  such  undertakings  as  for  insuring  greater  uniformity  in  the 
provisions  themselves. 

In  accordance  with  a  suggestion  made  in  the  course  of  the  argu- 
ment, I  have  looked  into  the  private  Acts  which  were  passed  for 
the  construction  of  piers  and  harbours  during  the  session  imme- 
diately preceding  that  in  which  the  Consolidating  Act  was 
passed,  and  I  find  that  there  were  twelve  Acts  passed  in  that 
session,  each  of  which  contained  a  clause  imposing  liability  for 
injury  done  to  harbour  works  in  the  same  general  terms  as  those 
of  section  74  of  the  Consolidating  Act;  and  I  presume,  from  the 
apparently  stereotyped  form  of  the  clauses  in  these  Acts,  that 
the  Acts  passed  in  previous  sessions  had  contained  clauses  to  the 
like  effect.  1  observe  that  the  Wear  Commissioners  obtained  a 
special  Act  in  that  session,  and  it  contains  the  clause  to  which  [ 
have  referred,  making  an  exception  when  a  pilot  is  on  board. 
The  provision  for  imposing  liability  for  damage  to  pier  and  har- 
bour works,  must,  therefore,  I  think,  have  been  familiar  to  the 
legislature;  and  that  appears  to  me  to  strengthen  the  presumption 
that  the  legislature  did  intend  by  the  clause  your  Lordships  are 
considering  to  impose  the  liability  in  the  general  terms  it  has  done. 
And  as  the  Act  affected  so  great  interests  as  the  piers  and  harbours 
of  the  United  Kingdom,  it  is  to  be  presumed  that  its  terms  would 
be  thoroughly  canvassed  and  carefully  considered  in  its  passage 


ACCIDENT.  337 

No.  9.  —  River  Wear  Commissioners  v.  Adamson.  —  Notes. 

through  Parliament,  especially  with  the  view  of  preventing  any 
limitation  in  the  case  of  future  piers  and  harbours  of  rights  which 
had  bee'n  conferred  on  owners  of  piers  by  previous  legislation. 

The  risk  of  causing  damage  to  piers  or  harbours  is,  I  apprehend, 
a  risk  which  it  would  be  competent  to  owners  of  vessels  to  insure 
against,  although  it  might  require  an  alteration  of  the  existing  form 
of  policy,  by  an  express  provision  against  the  risk  of  such  damage. 
The  supposed  injustice  of  the  section  thus  resolves  itself  into  a 
question  of  payment  of  money  to  cover  the  premium  to  secure 
against  the  risk  of  such  damage. 

Applying  the  authorities  to  which  I  have  referred  to  the  present 
case,  I  am  humbly  of  the  opinion,  which  1  entertain  with  very 
great  hesitation  after  the  opinions  which  have  been  expressed  by 
your  Lordships,  that  the  statute  ought  not  to  be  construed  as  if  it 
contained  an  exemption  from  liability  for  damage  where  it  occurs 
by  the  "  act  of  God."  The  words  appear  to  me  to  be  express  and 
unambiguous,  and  being  so,  I  think  they  should  be  read  according 
to  their  ordinary  construction. 

Judgment  appealed  against  affirmed ;  and  appeal  dismissed 
with  costs. 

ENGLISH  NOTES. 

Eglinton  v.  Norman  (C.  A.  1877),  36  L.  T.  888  ;  46  L.  J.  Exch. 
557,  was  an  action  brought  by  the  harbour-master,  under  section  74  of 
the  same  Act  as  that  referred  to  in  the  principal  case,  against  a  ship- 
owner for  the  expense  of  removing  a  wreck.  Under  this  74th  section 
the  owner  of  a  wreck  is  to  repay  the  harbour-master  the  expense  of 
removing  it,  if  it  becomes  an  obstruction  to  the  harbour.  The  defen- 
dant (besides  trying  to  shift  the  burden  on  the  underwriters,  to  whom 
the  slop  had  been  abandoned)  relied  on  the  principal  case  as  an  author- 
ity for  contending  that  he  was  exempt  from  liability  by  reason  that 
the  damage  was  caused  by  the  act  of  God.  But  the  Court  distin- 
guished the  case,  on  the  ground  that  the  liability  under  this  section  of 
the  Statute  is  grounded,  not  on  the  original  catastrophe,  but  on  the 
continuing  damage  caused  by  the  obstruction. 

The  principal  Case  is  cited  in  the  judgment  of  the  Judicial  Com- 
mittee in  Western  Counties  Ry.  Co.  v.  Windsor,  &c.  Ry.  Co.  (1882),  7 
App.  Cas.  178,  188;  51  L.  J.  P.  C.  43,  as  an  authority  for  the  general 
proposition  that  a  statute  is  not  to  be  construed  as  extinguishing  any 
private  right,  unless  it  appears  by  express  words  or  by  plain  implica- 
tion that  it  was  intended  to  do  so;  a  proposition  for  which  the  primary 
authority  is  J>arri?igton's  Case,  8  Co.  Pep.  138  a. 
vol.  i.  —  '22 


338  ACCIDENT, 


No.  10.  —  Jacobs  v.  Credit  Lyonnais.  —  Rule. 


No.    10. —JACOBS   v,   CEEDIT    LYONNAIS. 

(C.    A.    FROM   Q.    B.    1884.) 
RULE. 

A  person  who  expressly  contracts  absolutely  to  do  a  thing 
not  naturally  impossible,  is  not  excused  from  non-perform- 
ance by  reason  of  vis  major,  or  inevitable  accident,  by 
which  he  becomes  in  fact  unable  to  perform  it. 

Jacobs  v.  Credit  Lyonnais. 

12  Q.  B.  D.  589  (s.  c.  53  L.  J.  Q.  B.  150). 

This  action  was  brought  for  breach  of  a  contract  made  in  Lon- 
don for  the  sale  and  shipment  by  the  defendants  to  the  plaintiffs 
of  esparto  grass,  —  with  a  claim  for  special  damage,  by  reason  of  the 
plaintiffs  having  to  purchase  esparto  at  enhanced  prices  to  fulfil 
their  own  contracts. 

The  statement  of  claim  set  forth  the  contract,  the  terms  of  which 
were  contained  in  a  letter  signed  by  the  defendant's  agents,  and 
which,  so  far  as  material  for  the  purposes  of  this  report,  was  as 
follows :  — 

To  Messrs.  Jacobs,  Marcus,  &  Co.,  London. 

We  have  this  day  sold  to  you  by  order  and  for  account  of  the 
Credit  Lyonnais,  London  Agency,  twenty  thousand  (20,000)  tons 
Algerian  esparto  in  hydraulieally  pressed  iron-hooped  bales,  with 
a  fair  proportion  of  loose,  if  necessary,  for  stowage,  to  be  shipped 
by  the  Compagnie  Franco-Algdrienne  or  their  agents  from  Arzew 
3n-  any  other  port  with  safe  anchorage  and  where  steamers  can 
load  afloat,  by  sailing  ships  ^  steamers,  during  the  year  beginning 
1st  January,  1881,  and  ending  31st  December,  1881,  as  much  as 
possible  in  about  equal  proportions  in  each   month. 

(1.)  The  price  to  be  £5  4-s.  if  equal  to  "fair  average;"  £5  14s.  if 
equal  to  "good  average,"  and  £4  14.s.  if  equal  to  "inferior;"  such 
price  being  per  ton  of  1015  kilogrammes  Arzew  shipping  weight, 
less  a  draft  of  2  per  mille  allowed  in  the  invoice,  taken  free  on 
board  Algeria,  without  discount. 

(2.)  The  quality  of  each  classification  to  be  established  by  stan- 
dard samples  made  up  for  the  purpose  conjointly  by  yourselves 
and  the  Compagnie  Franeo-Algerienne  on  or  before  ^>lst  December. 


ACCIDENT.  339 

No.  10.       Jacobs  v.  Credit  Lyonnais. 

(r3.)  The  quality  of  esparto  tendered  against  this  contract  to  be 
finally  approved  of  by  you  or  your  representatives  at  the  works  of 
the   Corapagnie  Franco-Algerienne  at   Ain-el-Hadjar  before  being 

baled,  and  no  claim  respecting  quality  will  be  allowed  after  deliv- 
ery of  the  bales  at  Arzew.  You  undertake  in  your  name  and  in 
the  names  of  your  representatives  that,  with  the  exception  of  ap- 
proving the  quality  tendered  as  above,  no  interference  of  any  kind 
as  regards  the  company's  business  will  be  allowed. 

The  statement  of  claim  further  stated  the  breaches  by  non- 
delivery (which  were,  in  effect,  admitted)  and  the  special  damage. 

The  statement  of  defence,  amongst  other  things,  alleged  that  the 
acts,  the  non-performance  of  which  was  sued  for,  were  to  be  done 
in  Algeria,  and  that  the  question  of  damages  for  non-performance 
was  governed  by  the  French  Civil  Code  ;  and  they  relied  upon  Art. 
1 148  of  that  Code,  which  is  as  follows :  — 

II  n'y  a  lieu  a  aucuns  dommages  et  interests,  lorsque,  par  suite 
d'une  force  majeure  on  d'an  cas  fortuit,  le  ddbiteur  a  etd  empeche' 
<le  donner  on  de  faire  ce  a  quoi  il  dtait  oblige-,  on  a  fait  ce  qui  lui 
<3tait  interdit. 

The  statement  of  defence  then  stated  as  follows :  — 

7.  During  the  time  when  the  contract  sued  on  should  have 
been  performed  there  was  an  insurrection  in  Algeria,  and  military 
operations  were  going  on,  and  commands  were  issued  by  persons 
in  authority  preventing  the  collection  and  transport  of  esparto. 
Some  of  the  esparto  of  the  Compagnie  Franeo-Alge'rienne  intended 
for  delivery  to  the  plaintiffs  was  burnt,  and  the  servants  or  agents 
employed  in  carrying  on  works  towards  fulfilling  the  contract 
sued  on  were  in  some  cases  killed,  in  other  cases  maltreated, 
driven  away  from  their  work,  and  prevented  working.  By  the 
said  matters  so  happening  in  Algeria,  and  by  other  matters 
arising  out  of  the  said  insurrection,  and  all  of  which  amount  to 
force  majeure  within  the  law  of  Algeria,  the  Compagnie  Franeo- 
Alge'rienne  was  prevented  from  procuring  for  shipment  to  the 
plaintiffs  and  from  shipping  to  them  any  more  esparto  than  was 
in  fact  shipped  to  them,  and  the  defendants  were  prevented  from 
performing  their  contract  with  the  plaintiffs  any  further  than 
they  did  perform  it. 

The  plaintiff  demurred  to  these  statements  on  the  ground  that 
the  contract  was  governed  by  English  law,  and  not  by  the  law  of 
Algeria,  and  replied  further,  as  to  para.  7.,  that  the  defendants  or 


540  ACCIDENT. 

No.  10.  —  Jacobs  v.  Credit  Lyonnais. 


their  agents  could  have  procured  in  other  parts  of  Algeria,  where 
force  majeure  did  not  exist,  Algerian  esparto  of  the  qualities  men- 
tioned in  the  contract,  and  could  have  shipped  the  same  in  per- 
formance of  the  contract. 

There  was  a  rejoinder  by  the  defendants  as  follows  :  — 

That,  if  the  defendants  or  their  agents  had  procured  in  parts  of 
Algeria  where  force  majeure  did  not  exist  Algerian  esparto  of  the 
qualities  mentioned  in  the  contract,  the  transport  of  any  such 
esparto  so  procured  elsewhere  to  the  works  of  the  Compagnie 
Franco-Algdrienne  at  Ain-el-Hadjar,  for  the  purpose  of  being- 
there  approved  according  to  clause  3  of  the  contract  before  being 
baled,  and  also  the  transport  thereof  to  Arzew  for  shipment 
(though,  as  the  defendants  admit,  not  the  transport  from  the 
places  where  such  esparto  might  have  been  procured  to  all  other 
ports  in  Algeria)  would  have  been  and  in  fact  was  rendered  wholly 
impossible  by  reason  of  the  force  majeure  existing  at  and  in  the 
neighbourhood  of  Ain-el-Hadjar  and  over  a  large  port  of  Algeria, 
by  which  force  majeure  the  transport  of  esparto  both  to  and  irom 
Ain-el-Hadjar  and  to  Arzew  was  during  all  the  time  material  in 
this  action  prevented. 

The  plaintiff  demurred  to  this  rejoinder,  on  the  ground  that  the 
impossibility  of  transporting  the  esparto  to  Ain-el-Hadjar,  and  of 
getting  the  same  approved  there  before  being  baled,  and  also  of 
transporting  the  same  to  Arzew  for  shipment,  did  not  exonerate 
the  defendants  from  the  performance  of  the  contracts. 

There  was  a  joinder  in  this  demurrer,  and  on  these  pleadings 
the  case  was  argued  in  the  Queen's  Bench  Division  before  Mr. 
Justice  DENMAN,  who  gave  judgment  for  the  plaintiff's.  The 
defendants  appealed  to  the  Court  of  Appeal,  and  on  the  argument 
of  the  appeal  the  following  authorities  were  referred  to :  Kouquette 
v.  Overmann,  L.  R,  10  Q.  B.  525 ;  44  L.  J.  Q.  B.  321  ;  Mcdeiror  v. 
Hill,  8  Bing.  231;  1  L.  J.  C.  P.  77;  Chamberlain  v.  Napier,  15 
Ch.  D.  614;  49  L.  J.  Ch.  628  ;  Greer  v.  Poole,  5  Q.  B.  D.  272  ;  49 
L.  J.  Q.  B.  463.     The  Halle?/,  L.  R,  2  P.  C.  193  ;  37  L.  J.  Adm.  33. 

The  judgment  of  the  court  (Brett,  M.  R,  and  Bowen,  L.  J.) 
was.  on  a  subsequent  day,  delivered  by 

Bowen,  L.  J.  The  plaintiffs  in  this  case  are  esparto  merchants, 
carrying  on  business  in  the  city  of  London  ;  and  the  defendants 
are  a  banking  firm,  also  carrying  on  business  in  the  city. 

By  a  contract  made  in  London  on  the  6th  of  October,  1880,  the 


ACCIDENT.  341 


No.  10.  —  Jacob3  v.  Credit  Lyonnais. 


defendants  agreed  to  sell  to  the  plaintiffs  20.000  tons  of  Algerian 
esparto,  to  be  shipped  from  Algeria  during  the  year  1881  by 
monthly  deliveries  on  board  ships  or  steamers  to  be  provided  by 
the  plaintiffs;  payment  to  be  made  by  cash  on  arrival  of  the  ship 
or  steamer  at  her  port  of  destination.  The  defendants  delivered 
a  portion  of  the  esparto  under  the  contract,  but  failed  to  deliver 
the  remainder;  and  this  action  was  brought  by  the  plaintiffs  for 
its  non-delivery.  The  defendants  in  their  statement  of  defence 
admitted  the  non-delivery  complained  of,  but  alleged  that  the 
insurrection  in  Algeria,  and  the  military  operations  connected 
with  it.  had  rendered  the  performance, of  the  contract  impossible; 
and  that  by  the  French  Civil  Code,  which  prevails  throughout 
Algeria,  force  majeure  is  an  excuse  for  non-performance.  The 
plaintiff's  demurred  to  this  defence  on  the  ground  that  the  con- 
tracts were  governed  by  English  law  and  not  by  the  law  of 
Algeria,  and  further  alleged  that  the  defendants  or  their  agents 
could  have  procured  and  shipped  esparto  from  other  ports  of 
Algeria,  where  force  majeure  did  not  exist.  The  defendants  to 
the  latter  allegation  rejoined  that  the  insurrection  and  military 
operations  rendered  it  impossible  to  transport  such  esparto  as  last 
mentioned  to  the  place  fixed  in  the  contract  for  approval  by  the 
plaintiffs  of  its  quality  before  shipment,  or  to  transport  the  same 
to  the  place  fixed  in  the  contract  for  shipment.  To  this  rejoinder 
there  was  a  further  demurrer  upon  similar  grounds  The  Court 
of  Queen's  Bench  having  given  judgment  upon  both  demurrers 
for  the  plaintiffs,  the  case  now  comes  before  us  upon  appeal.  The 
question  which  we  have  in  substance  to  consider  is,  whether  non- 
performance of  their  agreement  by  the  defendants  can  be  excused 
on  the  ground  that  military  operations  in  Algeria  and  the  Algerian 
insurrection  had  rendered  its  performance  impossible,  and  that 
such  an  excuse  would  have  been  recognised  by  the  French  Civil 
Code,  which  prevails  in  Algeria,  in  conformity  with  the  following 
section,  as  translated  from  the  French:  "There  is  no  ground  for 
any  damages  when  by  means  of  a  superior  force  or  an  accident  the 
obligor  has  been  prevented  from  giving  or  doing  that  which  he 
was  bound  to  give  or  do,  or  has  done  that  which  he  was  not 
bound  to  do." 

The  first  matter  we  have  to  determine  is,  whether  this  contract 
is  to  be  construed  according  to  English  law  or  according  to  French. 
To  decide  this  point  we  must  turn  to  the  contract   itself;  for  it 


342  ACCIDENT. 

No.  10.  —  Jacobs  v.  Credit  Lyonnais. 

is  open  in  all  cases  for  parties  to  make  such  agreement  as  they 
please  as  to  incorporating  the  provisions  of  any  foreign  law  with 
their  contracts.  What  is  to  be  the  law  by  which  a  contract  or 
any  part  of  it  is  to  be  governed  or  applied  must  be  always  a 
matter  of  construction  of  the  contract  itself,  as  read  by  the  light 
of  the  subject-matter  and  of  the  surrounding  circumstances.  Cer- 
tain presumptions  or  rules  in  this  respect  have  been  laid  down 
by  juridical  writers  of  different  countries  and  accepted  by  the 
courts,  based  upon  common  sense,  upon  business  convenience,  and 
upon  the  comity  of  nations  ;  but  these  are  only  presumptions  or 
prima  facie  rules  that  are^  capable  of  being  displaced  wherever 
the  clear  intention  of  the  parties  can  be  gathered  from  the  docu- 
ment itself  and  from  the  nature  of  the  transaction.  The  broad 
rule  is  that  the  law  of  a  country  where  a  contract  is  made  pre- 
sumably governs  the  nature,  the  obligation,  and  the  interpretation 
of  it,  unless  the  contrary  appears  to  be  the  express  intention  of 
the  parties.  "  The  general  rule,"  says  Lord  Mansfield,  "  estab- 
lished ex  comitate  d  jure  gentium,  is  that  the  place  where  the 
contract  is  made,  and  not  where  the  action  is  brought,  is  to  be- 
considered  in  expounding  and  enforcing  the  contract,  But  this 
rule  admits  of  an  exception  where  the  parties  at  the  time  of  mak- 
ing the  contract  had  a  view  to  a  different  kingdom."  Robinson 
v.  Bland,  2  Burr.  1077;  1  W.  Black.  258;  and  see  The  Penin- 
sular ami  Oriental  Steam  Navigation  Company  v.  Shand,Z  Moore, 
P.  C.  x.  s.  272. 

This  principle  was  explained  by  the  Exchequer  Chamber  in  the 
case  of  Lloyd  v.  Guibert,  L.  II.,  1  Q.  B.  115  ;  35  L.  J.  Q.  B.  74,  as- 
follows:  "It  is  generally  agreed  that  the  law  of  the  place  where 
the  contract  is  made  is  prim  a  facie  that  which  the  parties  intended, 
or  ought  to  be  presumed  to  have  adopted,  as  the  footing  upon  which 
they  dealt,  and  that  such  law  ought  therefore  to  prevail  in  the 
absence  of  circumstances  indicating  a  different  intention  ;  as,  for 
instance,  that  the  contract  is  to  be  entirely  performed  elseAvhere,  or 
that  the  subject-matter  is  immovable  property  situate  in  another 
country,  and  so  forth,  — which  latter,  though  sometimes  treated  as 
distinct  rules,  appear  more  properly  to  be  classed  as  exceptions  to- 
the  more  general  one,  by  reason  of  the  circumstances  indicating  am 
intention  to  be  bound  by  a  law  different  from  that  of  the  place 
where  the  contract  is  made,  which  intention  is  inferred  from  the 
subject-matter  and  from  the  surrounding  circumstances  so  far  as 


ACCIDENT.  .'14-". 

No.  10.  —  Jacobs  v.  Credit  Lyonnais. 

they  are  relevant  to  construe  and  determine  the  character  of  the 
contract." 

It  is  obvious,  however,  that  the  subject-matter  of  each  contract 
must  be  looked  at  as  well  as  the  residence  of  the  contracting  parties 
or  the  place  where  the  contract  is  made.  The  place  of  performance 
is  necessarily  in  many  cases  the  place  where  the  obligations  of  the 
contract  will  have  to  be  enforced,  and  hence,  as  well  as  for  other 
reasons,  has  been  introduced  another  canon  of  construction  to  the 
effect  that  the  law  of  the  place  of  fulfilment  of  a  contract  deter- 
mines its  obligations.  But  this  maxim  as  well  as  the  former  must 
of  course  give  way  to  any  inference  that  can  legitimately  be  drawn 
from  the  character  of  the  contract  and  the  nature  of  the  transaction. 
In  most  cases,  no  doubt,  where  a  contract  has  to  be  wholly  performed 
abroad,  the  reasonable  presumption  maybe  that  it  is  intended  to  be 
a  foreign  contract,  determined  by  foreign  law;  but  this  primd  falie 
view  is  in  its  turn  capable  of  being  rebutted  by  the  expressed 
or  implied  intention  of  the  parties,  as  deduced  from  other 
circumstances. 

Again,  it  may  be  that  the  contract  is  partly  to  be  performed  in 
one  place  and  partly  in  another.  In  such  a  case  the  only  certain 
guide  is  to  be  found  in  applying  sound  ideas  of  business  conveni- 
ence and  sense  to  the  language  of  the  contract  itself,  with  a  view 
to  discovering  from  it  the  true  intention  of  the  parties.  Even  in 
respect  of  any  performance  that  is  to  take  place  abroad,  the  parties 
may  still  have  desired  that  their  liabilities  and  obligations  shall  be 
governed  by  English  law;  or  it  may  be  that  they  have  intended  to 
incorporate  the  foreign  law  to  regulate  the  method  and  manner  of 
performance  abroad,  without  altering  any  of  the  incidents  which 
attach  to  the  contract  according  to  English  law.  Stereotyped  rules 
laid  down  by  juridical  writers  cannot  therefore  be  accepted  as 
infallible  canons  of  interpretation  in  these  days  when  commercial 
transactions  have  altered  in  character  and  increased  in  complexity  ; 
and  there  can  be  no  hard  and  fast  rule  by  which  to  construe  the 
multiform  commercial  agreements  with  which  in  modern  times  we 
have  to  deal. 

In  the  present  case  the  contract  was  made  in  London  between 
merchants  carrying  on  their  business  in  the  city  of  London,  and 
payment  was  to  be  made  in  London.  Presumably,  therefore,  we 
should  infer  that  this  was  an  English  contract,  and  intended  to  be 
governed  by  English  law  ;    but  it  still  remains  to  be  considered 


344  ACCIDENT. 

No.  10.  —  Jacobs  v    Credit  Lyonnais. 

whether  anything  in  the  contract  itself  or  the  nature  of  its  stipu- 
lations, displaces  this  primd  facie  view  either  wholly  or  in  part. 

Now,  it  cannot  be  contended  that  the  parties  have  in  express 
terms  provided  that  any  portion  of  this  contract  is  to  be  construed 
or  applied  otherwise  than  according  to  English  law;  but  it  was 
suggested  by  the  appellants  that  such  an  intention  ought  to  be 
inferred  from  certain  provisions  as  to  the  collection  of  the  esparto 
in  Algeria  and  as  to  its  shipment  thence.  The  esparto  was  to  be 
.shipped  by  the  Compagnie  Franco  Algerienne  or  their  agents  from 
Arzew,  or  any  other  port  with  safe  anchorage,  by  sailing  ships  or 
steamers  during  the  year  1881.  The  quality  of  the  esparto  was  to 
lie  finally  approved  by  the  plaintiffs'  representatives  at  the  works 
of  the  Compagnie  Franco-Algerienne  at  Ain-el-Hadjar  in  Algeria, 
before  being  baled,  and  no  claim  respecting  quality  was  to  be  al- 
lowed after  the  delivery  of  the  bales  at  Arzew.  The  necessary 
ships  or  steamers  were  to  be  supplied  by  the  plaintiffs ;  otherwise 
the  esparto  wras  to  be  warehoused  by  the  Compagnie  Franco-Alge- 
rienne at  the  plaintiffs'  peril  and  risk.  Insurance  was  to  be  effected 
by  the  defendants  for  the  invoice  amount  at  selling  price  and  two 
per  cent,  over  in  the  United  Kingdom,  on  the  usual  conditions  ; 
payment  to  be  made  by  cash  on  arrival  of  the  ship  or  steamer  at 
port  of  destination.  Finally,  the  contract  contained  an  arbitration 
clause,  with  a  provision  that  it  should  be  made  a  rule  of  the  High 
Court  of  Judicature  on  the  application  of  either  of  the  contracting 
parties. 

There  is  absolutely  nothing  in  any  part  of  this  contract,  as  it 
appears  to  us,  which  can  amount  to  an  indication  that  it  is  in  any 
way  or  in  any  part  of  it  to  be  treated  as  anything  except  an  Eng- 
lish contract,  unless  it  be  the  mere  fact  that  the  esparto  is  to  be 
collected  in  Algeria,  approved  at  the  works  of  a  French  company 
in  Algeria  before  shipment,  and  to  be  delivered  on  board  ships  of 
the  plaintiffs  at  an  Algerian  port,  after  which  it  is  to  be  at  plain- 
tiffs' risk.  To  hold  that  on  this  ground  only  the  ordinary  pre- 
sumption is  to  be  displaced,  and  that  the  parties  must  have  meant 
some  law  other  than  the  English  to  govern  the  construction  of  any 
portion  of  the  contract  as  regards  the  liabilities  of  the  contracting 
parties,  would  be  to  introduce  a  serious  element  of  uncertainty 
into  mercantile  contracts.  The  mere  fact  that  a  contract  of  this 
description  —  made  in  England  between  English  resident  houses, 
and  under  which  payment  is  to  he  made  in  England  upon  delivery 


ACCIDENT. 


No.  10.  —  Jacobs  v.  Credit  Lyonnais. 


of  goods  from  up  country  in  an  Algerian  port  —  is  partly  to  be  per- 
formed in  Algeria,  does  not  put  an  end  to  the  inference  that  the  con- 
tract remains  an  English  contract  between  English  merchants,  to  be 
construed  according  to  English  law,  and  with  all  the  incidents  which 
English  law  attaches  to  the  non-performance  of  such  contracts. 

Now,  one  of  the  incidents  which  the  English  law  attaches  to  a 
contract  is  that  (except  in  certain  excepted  cases,  as  that  of  com- 
mon carriers  and  bailees,  of  which  this  is  not  one)  a  person  who 
expressly  contracts  absolutely  to  do  a  thing  not  naturally  impossi- 
ble is  not  excused  for  non-performance  because  of  being  prevented 
by  vis  major.  "  The  rule  laid  down  in  the  case  of  Paradine  v. 
Jane,  Aleyn,  26,  has  often,"  says  Lord  Ellen  borough  in  the  case  of 
Atkinson  v.  Ritchie,  10  East,  530,  533,  "been  recognised  in  courts 
of  law  as  a  sound  one,  —  that  is,  that  when  the  party  by  his  own 
contract  creates  a  duty  or  charge  upon  himself,  he  is  bound  to 
make  it  good  if  he  may,  —  notwithstanding  any  accident  by  inevi- 
table necessity  :  because  he  might  have  provided  against  it  by  his 
contract."  See  also  Sjjencc  v.  Chad  wick,  10  Q.  B.  Rep.  at  p.  530  ; 
16  Law  J.  Rep.  Q.  B.  at  p.  319  ;  and  Lloyd  v.  Guibert  (1865)  L.  R, 
1  Q.  B.  115  ;  35  L.  J.  Q.  B.  74.  If  inevitable  necessity  occurring 
in  this  country  would  not  excuse  non-performance,  why  should 
non-performance  be  excused  on  account  of  inevitable  necessity 
arising  abroad  ?  So  to  hold  would  be  to  alter  the  liability  which 
English  law  attaches  to  contracts,  and  would,  in  the  absence  of  an 
express  or  implied  intention  to  that  effect,  be  contrary  to  authority 
as  well  as  principle.  See  Barker  v.  Hodgson,  3  M.  &  S.  267,  and 
Sjoerds  v.  Luscombe,  16  East,  201. 

The  Solicitor-General  in  his  argument  admitted  that  he  was 
driven  to  contend  that  the  law  of  the  place  of  fulfilment  not 
merely  governed  the  mode  of  performance  of  this  particular  con- 
tract, but  governed  also  the  obligations  in  respect  of  performance 
and  the  liabilities  in  respect  of  non-performance  of  it.  It  seems  to  us, 
however,  that  the  true  principles  of  construction  to  be  applied  do 
not  admit  of  this  interpretation  of  this  contract.  To  what  extent 
foreign  law  is  to  be  incorporated  in  any  contract  must  be,  as  wo 
have  said,  a  question  of  construction  of  the  contract  itself  read  by 
the  light  of  the  surrounding  circumstances.  If  a  contract  made 
in  England  by  English  subjects  or  residents,  and  upon  which  pay- 
ment is  to  be  made  in  England,  has  to  be  performed  in  part  abroad, 
it  might  not  be  unreasonable  to  assume  that  the  mode  in  which  any 


346  ACCIDENT. 


No.  10.  —  Jacobs  v.  Credit  Lyonnais.  —  Notes. 


part  of  it  has  to  be  performed  abroad  was  intended  to  be  in  accor- 
dance with  the  law  of  the  foreign  country,  and  to  construe  the 
contract  as  incorporating  silently  to  that  extent  all  provisions  of 
a  foreign  law  which  would  regulate  the  method  of  performance  and 
which  were  not  inconsistent  with  the  English  contract.  But  it 
cannot  be  gathered  from  such  a  contract  as  the  present  that  the 
parties  desired  to  go  further,  and  to  discharge  the  defendants  from 
performance  wherever  circumstances  arose  which  would,  according 
to  foreign  law,  excuse  them.  The  contract  has  absolutely  provided 
that  delivery  of  the  esparto  shall  be  duly  made  ;  not  that  the  bar- 
gain as  to  such  delivery  need  only  be  observed  when  the  foreign 
law  would  insist  upon  such  observance.  The  contract  being  an 
English  contract,  only  such  portions  of  the  French  Civil  Code  can 
be  applied  to  its  provisions  as  to  performance  in  Algeria  as  are  not 
inconsistent  with  the  express  language  of  the  contract  as  inter- 
preted according  to  English  law.  If  the  parties  had  wished  in 
addition  to  this  to  incorporate  a  provision  of  French  law  which  in 
the  event  of  vis  major  would  operate  to  excuse  the  contracting 
parties  for  non-performance,  and  thus  to  vary  the  natural  construc- 
tion of  the  instrument  according  to  English  law,  they  should  have 
done  so  in  express  terms.  Read  by  English  law,  the  contract  is  not 
susceptible  of  such  an  interpretation,  and  there  is  nothing  to  show 
that  in  this  respect  the  parties  desired  the  contract  to  be  governed 
by  the  French.  For  these  reasons  we  are  of  opinion  that  the  judg- 
ment of  the  court  below  was  right  and  must  be  affirmed  with 
costs.  Appeal  dismissed. 

ENGLISH    NOTES. 

The  principal  case  has  been  selected  as  an  authoritative  and  recent 
application  of  the  rule,  which  itself  is  too  well  settled  in  English  law 
to  require  any  lengthy  comment.  It  will  suffice  to  refer  to  the  follow- 
ing cases:  Kearon  v.  Pearson  (1801).  7  H.  &  N.  386;  31  L.  J.  Ex.  1, 
where  charterer  of  a  ship  was  prevented  from  bringing  his  cargo  along- 
side by  an  unusual  frost;  Jones  v.  St.  John's  College  (1870),  L.  E., 
6  Q.  B.  llo;  40  L.  J.  Q.  B.  SO.  where  the  plaintiff  (a  contractor) 
had  undertaken  to  do  certain  works  with  such  alterations  as  should 
be  ordered  by  the  defendants  within  a  certain  time,  and  was  held  not 
entitled  to  plead  that  the  defendants  had  ordered  alterations  impossible 
to  complete  within  the  time;  Grant  &  Co.  v.  Coverdale,  Todd  &  Co. 
(11.  L.  1884),  9  App.  Cas.  470;  53  L.  J.  Q.  B.  462,  a  charter-party  case 
in  which  there  was  an  exception  of    "frosts,  &c,   preventing    the    load- 


ACCIDENT.  347 

No.  10.  —  Jacobs  v.  Credit  Lyonnais.  —  Notes. 

ing,"  where  the  House  considered  the  only  question  to  be  whether  the 
••use  came  within  the  exception,  and  they  decided  that  it  was  not. 
(The  facts  were  that  the  intended  cargo  was  intercepted  by  the  frost 
on  a  canal;  but  the  dock  was  not  frozen,  nor  was  there  anything  to 
prevent  the  cargo  being  loaded  if  it  bad  been  ready  at  the  dock); 
In  re  Arthurs  Estate,  Arthur  v.  Wynn  (1880),  14  Ch.  D.  603;  49 
L.  J.  Ch.  556,  where  a  husband  by  marriage  settlement  contracted  within 
a  certain  time  to  effect  a  policy  of  insurance,  but  before  the  expiry  of  the 
time  his  life  became  uninsurable,  and  the  Master  of  the  Rolls  (Jessel), 
decided  that  his  estate  was  liable. 

So  a  person  is  not  excused  if  he  is  prevented  from  performing  his 
contract  by  the  law  or  order  of  a  foreign  government,  Barker  v.  Hodg- 
son (1814),  3JV1.  ,v  S.  267;  Kirk  v.  Gibbs  (1857),  1  H.-&N.  810; 
26  L.  J.  Exch.  200;  unless  the  act  prohibited  is  one  in  which  both 
parties  should  concur  under  the  contract.  Ford  v.  Cotesworth  (1868), 
L.  R.,  4  Q.  B.  L27;  38  L.  J.  Q.  15.  52;  Cunningham  v.  Dunn  (C.  A. 
1878),  3  C.  P.  I).  44:; ;  48  L.  J.  C.  P.  62. 

AMERICAN    NOTES 

The  doctrine  of  the  principal  case  universally  prevails  in  this  country,  in 
respect  to  contracts  of  sale,  building,  leasing,  and  the  like.  Thus,  one  who 
agrees  to  build  a  house  on  another's  land  is  not  released  by  the  destruction  of 
the  house  by  tire  when  nearly  completed.  Adams  v.  Nichols,  1!)  Pickering 
(Mass.),  275;  31  Am.  Dec.  137,  citing  Bullock  v  Dommill,  6  T.  R.  650,  and 
Walton  v.  Waterhouse,  2  Wins.  Saunders.  826,  note.  Followed  in  Tompkins  v. 
Dudley,  25  New  York,  272:  82  Am.  Dec.  349  (citing  Mucklowv.  Mangles,  1 
Taunt.  318)  ;  School  District  v.  Dauchy,  25  Connecticut,  530  :  lis  Am.  Dec.  371. 
So  of  a  contract  to  repair  a  ship.  Seguin  v.  Debon,  3  Martin  (Louisiana), 
6;  5  Am.  Dec.  735.  See  also  Doster  v.  Brown,  25  Georgia,  24;  71  Am.  Dec. 
153;  Superintendent  v.  Bennett,^  Dutcher  (Xew  Jersey),  51:!:  72  Am.  Dec. 
373;  Fildew  v.  Besley,  42  Michigan.  100;  3(5  Am.  Rep.  4:5:; :  Steele  v.  Buck, 
01  Illinois,  343  ;  14  Am.  Rep.  GO,  a  case  of  covenant  (citing  Paradine  v.  Jane, 
Aleyn.  27);  Brumby  v.  Smith,  3  Alabama  (  Xew  Series),  123;  Ratidall  v.  Johnson. 
59  Mississippi,  317  ;  42  Am.  Rep.  305.  A  public-school  teacher  may  recover 
wages  for  his  stipulated  term,  although  the  school  was  suspended  on  account 
of  small-pox.  Dewey  v.  Alpena  School  District,  43  Michigan.  480;  38  Am. 
Rep. 206,  ami  note.  208,  citing  Menetone  v.  Athaices,  '■>  Biut  1502:  Shubrick  v. 
Salmond,  3  Burr.  1637  :  Barker  v.  Hodgson,  3  M.  &  S.  267;  Bealson  v.  School,-. 
■\  East,  232.  See  also  Dermott  v.  Jones,  2  Wallace  (U.  S.  Sup.  Ct.).  I  :  Hodgdon 
v.  Railroad  Co.,  46  Connecticut.  276;  '•>'■'>  Am.  Rep.  21.  So  in  Oakley  v.  Mor- 
ton, 1  Kernan  (Xew  York).  25.  where  one  agreed  to  keep  twenty  cows  and 
deliver  the  butter  thereof,  he  was  held  not  excused  by  the  drying  of  part 
of  the  cows.  So  where  one  contracted  to  deliver  a  specified  quantity  of 
corn  and  fodder,  "  unavoidable  accidents  only  excepted,"  he  was  not  excused 
by  failure  of  crops  from  drought.  McGehee  v.  Hill,  4  Porter  (Alabama),  170  ; 
29   Am.   Dec.  277  (citing  Raioson  v.  Johnson.  1   East,  203) j   Anderson   v.  May 


348  ACCIDENT. 


No.  10.  -  -  Jacobs  v.  Credit  Lyonnais.  —  Notes. 


(Minnesota),  52  X.  W.  Reporter.  530.  So  of  death.  Mactiefs  Adni'rs  v.  Frith, 
6  Wendell  (New  York).  103  ;  21  Am.  Dec.  202;  Hawkins  v.  Ball's  Adm'r,  18 
B.  Monroe  (Kentucky),  810  ;  08  Am.  Dec.  755.  A  carrier's  failure  to  deliver 
within  a  specified  agreed  time  is  not  excused  by  inevitable  accident.  Har- 
mony v.  Bingham,  12  New  York,  99  ;  02  Am.  Dec.  1-42,  and  note,  151.  And 
failure  to  perform  a  contract  to  manufacture  goods  is  not  excused  by  the  de- 
struction of  the  mill  by  fire.  Booth  v.  Spuyten  Duyvil  R.  M.  Co.,  0(1  New  York, 
487.  See  generally  in  support  of  this  rule,  Welh  V.  Calnan,  107  Massachusetts, 
517;  Dist.  Township  v.  Smith,  39  Iowa,  11;  Bacon  v.  Cobb,  45  Illinois,  53 ; 
Cassady  v.  Clarke,  7  Arkansas,  131. 

A  distinction  is  made  in  respect  to  contracts  of  sale  of  certain  specified 
articles  of  personal  property,  and  if  they  are  destroyed  by  accident,  no  action 
for  damages  for  non-delivery  lies.  Dexter  v.  Norton,  47  New  York,  02;  7  Am. 
Rep.  415,  citing  Taylor  v.  Caldwell,  113  Eng.  Com.  Law,  824.  (Two  judges 
dissented.)  See  also  Wells  v.  Calnan,  107  Massachusetts,  514  ;  9  Am.  Rep.  05  ; 
Goldman  v.  Rosenberg,  110  New  York,  78;  Stewart  v.  Stone,  127  New  York. 
500,  and  note,  14  Lawyers'  Rep.  Annotated,  215. 

But  some  cases  hold  that  where  a  contract  for  labour  and  materials  in  alter- 
ing or  repairing  a  structure,  with  no  provision  as  to  time  of  payment,  is 
rendered  impossible  by  fire,  there  may  be  a  recovery  quantum  meruit.  Haynes 
v.  Church,  88  Missouri,  285;  ~>7  Am.  Hep.  413.  distinguishing  the  case  from  a 
contract  to  build.  Weis  v.  Devlin,  07  Texas,  507;  60  Am.  Rep.  38,  citing 
Appleby  v.  Myers,  L.  H.,  2  C.  1'.  651  :  Lord  v.  Wheeler,  1  Gray  (Mass.),  282; 
Gilbert,  Sfc.  Co.  v.  Butler,  140  Massachusetts,  82.  This  distinction  is  clearly 
set  forth  in  a  late  case,  Butterfield  v.  Byron,  153  Massachusetts,  517;  25  Am. 
St.  Rep.  054.  For  a  certain  sum  defendant  agreed  to  confribute  certain 
labour  and  materials  towards  the  erection  of  a  house  on  land  of  plaintiff. 
Defendant's  work  was  to  be  done  at  a  certain  time.  Shortly  before  com- 
pletion it  was  destroyed  by  fire.  Held,  that  the  agreement  was  on  an 
implied  condition  that  the  building  should  continue  in  existence,  and  that 
having  been  destroyed  by  inevitable  accident,  he  was  not  bound  to  build 
another,  or  to  do  any  thing  further  under  his  contract.  In  such  case, 
defendant  can  recover  for  work  and  material  done  and  furnished  on  an 
implied  assumpsit  at  the  contract  rate,  plaintiff  to  be  allowed  for  all 
payments  made.  The  court  said,  "What  are  the  rights  of  the  parties  in 
regard  to  what  has  been  done  in  part  performance  of  a  contract  in  which 
there  is  an  implied  condition  that  the  subject  to  which  the  contract  re- 
lates shall  continue  in  existence,  and  where  the  contemplated  work  cannot 
be  completed  by  reason  of  the  destruction  of  the  property  without  fault  of 
either  of  the  parties,  is  in  dispute  upon  the  authorities.  The  decisions  of 
England  differ  from  those  of  Massachusetts  and  of  most  of  the  other  States 
of  this  country.  There  the  general  rule  stated  broadly  seems  to  be  that  the 
loss  must  remain  where  it  first  falls,  and  that  neither  of  the  parties  can 
recover  of  the  other  for  any  thing  done  under  the  contract.  In  England,  on 
authority,  and  upon  original  grounds,  not  very  satisfactory  to  the  judges  of 
recent  times,  it  is  held  that  freight  advanced  for  the  transportation  of  goods 
subsequently  lost  by  the  perils  of  the  sea  cannot  be  recovered  back.  A  llison 
v.  Insurance  Co.,  L.  R.,  1  App.  209,  220:   Byrne  v.  Schiller.  L.  R.,  0  Exch.  319. 


ACCIDENT.  349 

No.  10.  —  Jacobs  v.  Credit  Lyonnais.  —  Notes. 

In  tin1  United  Slates  and  in  continental  Europe  the  rule  is  different.  Griggs 
v.  Austin,  -'5  Tick.  20,22;  Brown  v.  Harris,  2  Gray,  359.  In  England  it  is 
held  that  one  who  has  partly  performed  a  contrad  on  property  of  another, 
which  is  destroyed  withoul  the  fault  of  either  party,  can  recover  nothing; 
and,  on  the  other  hand,  that  one  who  has  advanced  payments  on  account  of 
Labour  and  materials  furnished  under  such  circumstances  cannot  recover  back 
the  money.  Appleby  v.  Myers,  I/.  It..  2  ('.  1*.  652;  Navigation  Co.  v.  Rennie, 
L.  R.,  10  id.  271.  One  who  has  advanced  money  for  the  instruction  of  his  son 
in  a  trade  cannot  recover  it  hack  if  he  who  receives  it  dies  without  giving  the 
instruction.  Whincup  v.  Hughes,  L.  lv.,  (J  C.  P.  78.  But  where  one  dies  and 
leaves  unperformed  a  contract  which  is  entire,  his  administrator  may  recover 
any  instalments  which  were  due  on  it  before  his  death.  Stubbs  v.  Railway  (  '«., 
L.  1!.,  2  Exch.  311.  In  this  country,  where  one  is  to  make  repairs  on  the 
house  of  another  under  a  special  contract,  or  is  to  furnish  a  part  of  the  work 
and  materials  used  in  the  erection  of  a  house,  and  his  contract  becomes  im- 
possible of  performance  on  account  of  the  destruction  of  the  house,  the  rule  is 
uniform,  so  far  as  the  authorities  have  come  to  our  attention,  that  he  may  re- 
cover for  what  he  has  done  or  furnished.  In  Clear//  v.  Sohier,  120  Masschusetts, 
210,  the  plaintiff  made  a  contract  to  lath  and  plaster  a  certain  building  for 
forty  cents  per  square  yard.  The  building  was  destroyed  by  a  tire  which  was 
an  unavoidable  casualty.  The  plaintiff  had  lathed  the  building  and  put 
on  the  first  coat  of  plaster,  and  would  have  put  on  the  second  coat,  according 
to  his  contract,  if  the  building  had  not  been  burned.  He  sued  on  an  implied 
assumpsit  for  work  done  and  materials  found.  It  was  agreed  that,  if  he  was  en- 
titled to  recover  anything,  the  judgment  should  be  for  the  price  charged.  It 
was  held  that  he  could  recover.  See  also  Lord  v.  Wheeler,  1  Gray,  282  ;  Wells  v. 
Calnan,  107  Massachusetts.  514,  ol7.  In  Cook  v.  McCdbe,  53  Wisconsin,  250,  the 
plaintiff  recovered  pro  rata  under  his  contract;  that  is,  as  we  understand,  he 
recovered  on  an  implied  assumpsit  at  the  contract  rate.  In  Hollis  v.  Chapman, 
36  Texas,  1,  and  in  Clark  v.  Franklin,  7  Leigh,  1,  the  recovery  was  a  propor- 
tional part  of  the  contract-price.  To  the  same  effect  are  Schwartz  v.  Saunders, 
46  Illinois,  18 ;  Rawson  v.  Clark,  70  id.  056  ;  and  Clark  v.  Busse,  82  id.  515.  The 
same  principle  is  applied  to  different  facts  in  Jones  v.  Judd,  4  Xew  York  111, 
and  in  Hargrace  v.  Conroy,  19  N.  J.  Eq.  281.  If  the  owner  in  such  a  case  has 
paid  in  advance,  he  may  recover  back  his  money,  or  so  much  of  it  as  was  an 
over-payment.  The  principle  seems  to  be  that  when,  under  an  implied  condi- 
tion of  the  contract,  the  parties  are  to  be  excused  from  performance  if  a  certain 
event  happens,  and  by  reason  of  the  happening  of  the  event  it  becomes  impos- 
sible to  do  that  which  was  contemplated  by  the  contract,  there  is  an  implied 
assumpsit  for  what  has  properly  been  done  by  either  of  them;  the  law  deal- 
ing with  it  as  done  at  the  request  of  the  other,  and  creating  a  liability  to  pay 
for  it  its  value,  to  be  determined  by  the  price  stipulated  in  the  contract,  or  in 
some  other  way  if  the  contract-price  cannot  be  made  applicable.  Where 
there  is  a  bilateral  contract  for  an  entire  consideration  moving  from  each 
party,  and  the  contract  cannot  be  performed,  it  may  lie  held  that  the  consider- 
ation on  each  side  is  the  performance  of  the  contract  by  the  other,  and  that 
a  failure  completely  to  perform   it  is   a  failure  of  the  entire  consideration, 


350  ACCIDENT. 


No.  10.  —  Jacobs  v.  Credit  Lyonnais.  —  Notes. 


leaving  each  party,  if  there  has  been  no  breach  nor  fault  on  either  side,  to  his 
implied  assumpsit  for  what  he  has  done." 

The  same  rule  prevails  in  respect  to  covenants  to  pay  rent  or  rebuild.  Ross 
v.  Overton,  3  Call  (Virginia),  309  ;  2  Am.  Dec.  552,  where  the  buildings  were 
carried  away  by  ice  ;  Hallett  v.  Wylie,  3  Johnson  (New  York),  44  ;  3  Am.  Dec. 
•457,  where  the  buildings  were  destroyed  by  fire  ;  Whilaker  v.  Haioley,  25 
Kansas,  674;  37  Am.  Rep.  277.  But  otherwise  of  a  lease  of  apartments 
in  a  building.  Stock-well  v.  Hunter,  11  Metcalf  (Mass.).  148;  45  Am.  Dec. 
220;  Wintonv.  Cornish,  5  Ohio,  477  ;  Womack  v.  Me  Quarry,  28  Indiana,  103  : 
92  Am.  Dec.  306;  Alexander  v.  Dorse//.  12  Georgia,  12;  56  Am.  Dec.  443. 
The  lessee  of  a  slave,  covenanting  to  return  him  at  the  end  of  a  year,  is 
excused  by  the  slave's  running  away.  Singleton  v.  Carroll,  6  J.  J.  Marshall 
(Kentucky),  527  ;  22  Am.  Dec.  95. 

But  .in  Pollard  v.  Shaaffer.  1  Dallas  (Penn.),  210;  1  Am.  Dec.  239,  a 
covenant  to  repair  was  held  released  by  the  seizure  and  destruction  of  the 
building  by  an  alien  enemy,  —  namely,  the  British  army  under  General  Howe, 
in  1777.     This  is  opposed  to  the  entire  current  of  the  American  decisions. 

The  same  rule  prevails  in  respect  to  express  contracts  by  carriers,  as  to  de- 
liver within  a  certain  time.  Hand  v.  Baynes,  4  Wharton  (Penn.),  204  ;  33 
Am.  Dec.  51;  Harmony  v.  Bingham,  12  Xew  York,  99;  62  Am.  Dec.  142: 
Deming  v.  Grand  Trunk  R.  Co.,  48  Xew  Hampshire.  455  ;  Harrison  v.  Mis- 
souri Pac.  R.  Co.,  74  Missouri.  364  ;  Van  Buskirk.  v.  Roberts,  31  Xew  York.  661. 
Even  when  performance  is  prevented  by  a  mob.  White  v.  Missouri,  Sfc.  R.  Co.. 
Ill  Missouri  Appeals,  400.  Or  to  furnish  a  full  cargo.  Nelson  v.  Odiorne,  45  New- 
York,  489.  But  the  destruction  of  a  vessel  relieves  from  a  contract  to  carry  a 
passenger  thereon.  Bonsteel  v.  Vanderbilt.  21  Barbour  (Xew  York  Sup.  ( 't. ),  26. 
In  respect  to  contracts  for  personal  service,  it  is  generally  held  that  where 
entire  performance  has  been  prevented  by  sickness  or  death,  a  recovery  may 
be  had  quantum  meruit.  Dickey  v.  Linscott,  211  Maine.  453:  37  Am.  Dec.  (it; : 
Greene  v.  Linton,  7  Porter  (Alabama),  133;  31  Am.  Dec.  707;  Spalding  v. 
Rosa,  71  Xew  York,  40;  27  Am.  Pep.  7.  the  case  of  a  singer;  Leopold  v. 
Salkey,  89  Illinois.  112  ;  31  Am.  Pep.  93,  and  note,  id.  100 ;  Wolfe  v.  Howes,  20- 
Xow  York,  197  ;  Johnson  v.  Walker,  155  Massachusetts,  253 ;  Doster  v.  Brown,  25- 
Georgia,  24;  71  Am.  Dec.  153;  Cleary  v.  Sohier,  120 Massachusetts, 210 ;  Cook 
v.  Mc.Ca.be,  53  Wisconsin,  250;  40  Am.  Rep.  765 ;  Lakeman  v.  Pollard,  43  Maine, 
463,  where  one,  contracting  to  work,  left  on  account  of  cholera  in  the  neigh- 
bourhood; Clark  v.  Franklin,  7  Leigh  (Tennessee),  1,  where  husband  and  wife 
agreed  to  perform  services,  and  performed  till  the  death  of  the  wife,  the  hus- 
band recovered  quantum  meruit.  Parkerv.  Macomber,  17  Rhode  Island,  674  ;  46 
Albany  Law  Journal,  109.  distinguishing  Cutter  v.  Poioell,  6  T.  R.  320. 

An  obligor  is  excused  from  the  performance  of  a  disjunctive  condition  if 
one  of  the  alternatives  becomes  impossible  by  the  act  of  God.  Smith  v.  Dwell, 
16  Xew  Hampshire,  344;  41  Am.  Dec.  732. 

Performance  of  the  condition  of  a  recognisance  becoming  impossible  by  act 
of  God,  as  sickness,  is  excused.  People  v.  Manning,  8  Cowen  (Xew  York),  297  ; 
is  Am.  Dec.  451 ;  People  v.  Tubbs,  37  Xew  York,  588. 

As  to  whether  a  surety  on  a  replevin  bond  or  a  bond  for  the  release  of 


ACCIDENT.  351 


No.  11.  —  Rothes  v.  Kirkcaldy  Waterworks  Commissioners. — Rule. 

animals  attached  is  released  by  the  death,  before  judgment,  of  the  property 
replevied  or  attached,  the  decisions  are  conflicting.  Thai  he  is  released  is 
held  in  Bubo  v.  Patton,  6  lleiskell  (Tennessee).  172;  Ide  v.  Fassett,  57  Ver- 
mont, 68;  Walker  v.  Osgood,  53  Maine,  422;  Carpenter  v.  Stevens,  12  Wendell 
(New York),  589.  To  the  contrary:  Wilkerson  v.  McDougal,  48  Alabama. 
.">17  :  Drake  v.  White,  117  Massachusetts,  b>;  Suydam  v.  Jenkins,  3  Sandford 
(New  York  Super.  Ct.),  644. 


No  11.  —  ROTHES  (Countess  of)   y.   KIRKCALDY  WATER- 
WORKS  COMMISSIONERS. 

(H.    L.    APPEAL    FROM    SCOTLAND    1882.) 
RULE. 

Where  the  Special  Act  of  a  Statutory  Undertaking  con- 
•tains  a  provision  binding  the  undertakers  to  make  good 
to  a  certain  person  damage  of  a  certain  description,  they 
are  bound  to  make  it  good  at  all  events,  and  without 
any  exception  of  inevitable  accident,  just  as  if  they  had 
entered  into  an  express  contract  of  insurance  with  the 
persons  suffering  the  damage. 

Rothes  (Countess  of)  v.  Kirkcaldy  Waterworks  Commissioners. 

(7  App.  Cas.  694.) 

Appeal  from  the  Court  of  Session  in  Scotland. 

By  a  special  act  of  Parliament  known  as  the  Kirkcaldy  and 
Dysart  Waterworks  Act,  1867,  the  respondents  (under  the  name 
of  water  commissioners)  had  been  authorised  to  make  reservoirs 
on  the  Lomond  Hills,  and  to  carry  out  the  necessary  works  for  the 
supply  of  water  to  these  two  places,  and  for  a  compensation  supply 
to  mill-owners  on  the  streams,  the  water  of  which  was  impounded. 
Under  the  powers  of  this  Act  a  reservoir  had  been  constructed 
(-ailed  the  Ballo  reservoir,  so  as  to  impound  the  water  of  the 
Lothrie  Burn  (the  course  of  which  ran  through  appellant's  estate), 
and  so  that  the  overflow  of  the  reservoir  is  directed  into  the  Loth- 
rie water  course  by  means  of  a  by-wash.  In  the  month  of  Aug- 
ust, 1877,  there  was  an  extraordinary  rainfall  over  the  supply  area 
of  the  Lothrie  Burn,  so  that  the  water  flowing  over  the  by-wash 
into  the  channel  of  the  burn  came  down  in  greatly  increased  vol- 
umes, and  did  damage  to  the  appellant's  property. 


352  ACCIDENT. 


No.  11.  —  Rothes  v.  Kirkcaldy  Waterworks  Commissioners. 

The  action  was  brought  by  the  appellant  to  have  this  damage 
made  good  and  the  amount  settled  by  arbitration  according  to  the 
Act.     The  clauses  of  the  Act  relied  upon  by  her  were  as  follows:  — 

Sect.  43.  The  commissioners  shall  be  bound  to  make  good  to  the 
said  Countess  of  Rothes,  and  her  heirs  and  successors,  from  time  to 
time,  all  damages  which  may  be  occasioned  to  her  or  them  by  rea- 
son or  in  consequence  of  any  bursting,  or  flood,  or  escape  of  water 
from  any  reservoir,  aqueduct,  or  pipe,  or  other  work  connected 
therewith,  which  may  be  constructed  or  laid  by  the  commission- 
ers ;  and  the  right  to  claim  payment  of  such  damages  and  expenses 
shall  not  be  lessened  by  the  powers  conferred  by  this  Act  as  re- 
gards inspection  and  seeing  to  the  sufficiency  of  the  works,  either 
during  the  construction  or  at  the  completion  thereof,  or  by  any- 
thing that  shall  have  been  done  under  or  in  consequence  of  these 
powers. 

Sect.  49.  All  claims  of  compensation  for  land  taken  or  used, 
and  for  laying  pipes  or  constructing  works  within  or  upon  the 
estate  of  the  said  Countess  of  Rothes,  and  all  claims  of  her,  or  her 
heirs  or  successors,  for  compensation  or  damages  through  flood  or 
escape  of  water,  or  flooding  or  bursting  of  any  of  the  reservoirs 
authorised  by  this  Act,  or  works  connected  therewith,  or  for  alter- 
ing, enlarging,  or  increasing  the  number  of  pipes,  or  inspecting 
and  repairing  pipes  to  be  laid  by  the  commissioners,  which  shall 
from  time  to  time  be  made  by  the  said  Countess  of  Rothes,  or  her 
heirs  and  successors,  against  the  commissioners,  and  all  questions 
which  may  arise  in  relation  thereto,  shall  be  settled  by  arbitration 
in  manner  provided  by  the  Lands  Clauses  Consolidation  (Scot- 
land) Act,   1845. 

The  parties  having  gone  into  evidence,  the  action  wTas  heard 
before  the  Lord  Ordinary  (Rutherford  Clark)  on  the  3rd  of  Dec, 
1878,  and  he  pronounced  a  decree,  in  effect  dismissing  the  action 
with  costs.  The  appellant  brought  up  this  decree  by  way  of  review 
to  the  Judges  of  the  Inner  House  of  the  Court  <>f  Session  ;  and  the 
case  was  heard  by  a  court  consisting  of  the  Lord  Justice  Clerk 
(Moncreiff,  President  of  the  second  Division  of  the  Court)  and 
Lords  ORMIDALE  and  (tTFFORD. 

This  court  affirmed  the  decree  of  the  Lord  Ordinary ;  the 
majority  of  the  court  being  of  opinion  that,  the  reservoir  having 
been  in  no  way  proved  to  be  insufficient,  the  Water  Commissioners 
were  not  liable.  The  Lord  Justice  Clerk  dissented,  and  gave  his 
opinion  upon  the  principle  applying  to  the  case  as  follows  :  — 


ACCIDENT. 
No.  11.  —  Kothes  v.  Kirkcaldy  Waterworks  Commissioners. 


My  opinion  is,  that  the  clause  in  the  statute  on  which  this  case 
turns,  constitutes  an  obligation  upon  the  commissioners  as  part  of 
the  consideration  for  obtaining  the  statutory  powers  which  they 
had  not,  and  could  not  have  had  otherwise,  —  constitutes  an  obli- 
gation of  absolute  protection  against  the  things  mentioned  in  that 
clause.  Now,  it  bein«  assumed  that  there  was  a  flood,  the  Lord 
Ordinary  has  found  that  this  case  is  not  within  the  clause  I  have 
referred  to;  and  the  ground  upon  which  he  has  proceeded  is  that 
it  does  not  appear  that  if  the  reservoir  had  not  been  there  this 
damage  would  not  have  been  caused.  The  only  question,  in  the 
first  instance,  is  whether  the  contingency  expressed  in  the  clause 
has  occurred,  —  that  is,  whether  the  pursuers  have  suffered  injury  by 
reason  of  the  discharge  from  this  reservoir,  whether  by  bursting,  or 
escape,  or  flood.  On  this  question  there  can  be  no  doubt  whatever, 
so  far  as  the  circumstances  are  concerned.  It  is  proved  that  on 
the  18th,  19th,  and  20th  of  August,  1S77,  a  large  body  of  water 
was  continuously  discharged  from  this  reservoir  at  a  height  of 
sixty  feet  above  the  bed  of  the  stream,  tearing  up  the  solid  ma- 
sonry of  the  by-wash  (a  structure  about  one  hundred  yards  in 
length),  and  spreading  over  the  banks  of  the  stream  below,  where 
it  inflicted  the  damage  now  complained  of  on  the  property  of  the 
pursuers.  Now,  in  my  opinion,  that  is  quite  sufficient  to  found 
this  action,  and  I  do  not  think  any  further  inquiry  either  neces- 
sary or  relevant.  It  is  said,  however,  to  be  immaterial  that  the 
water  was  so  discharged  from  the  reservoir  unless  it  can  be  also 
proved  that  if  the  reservoir  had  never  been  there  the  same  amount 
of  water,  at  the  same  height  and  under  the  same  conditions,  would 
not  have  flowed  down  the  same  channel  and  inflicted  the  same  in- 
jury. It  is  needless  to  say  that  there  is  not  a  word  in  the  statute 
to  this  effect.  I  see  no  reason  for  applying  this  singular  condition 
to  the  right  to  recover  damage  done  by  flood  any  more  than  to 
injury  done  by  bursting  or  escape.  But  if,  from  some  unavoidable 
cause,  the  reservoir  had  been  burst  through,  —  from  lightning,  or  a 
waterspout,  or  any  other  singular  cause,  —  it  might  quite  as  reason- 
ably have  been  contended,  had  a  flood  existed  at  the  time,  that  the 
same  or  a  greater  amount  of  water  would  have  come  down  had  the 
reservoir  not  been  there.  But  this  view  of  the  case,  in  my  opinion, 
is  entirely  fallacious,  first,  because  it  places  on  the  pursuers  the 
burden  of  proving  a  fact  which  never  can  be  proved;  and  secondly, 
because  whatever  the  result  might  have  been  if  the  reservoir  had 
vol.  r.  —  23 


354  ACCIDENT. 


No.  11.  —  Rothes  v.  Kirkcaldy  Waterworks  Commissioners. 

never  been  made,  it  is  quite  certain,  on  the  simplest  natural  laws, 
that  the  result  must  have  been  different  from  what  actually  oc- 
curred. To  foretell  before  the  event,  or  to  assume  in  the  absence 
of  the  event,  the  effects  which  might  be  produced  by  an  unusual 
rainfall  on  a  given  stream  is  a  problem  wholly  beyond  the  range 
of  calculation.  Water  in  flood  is  one  of  the  most  capricious  of 
natural  agents.  .  .  .  The  only  thing  that  to  me  appears  certain 
is  that  the  result  with  the  reservoir  there  must  have  been  differ- 
ent from  what  it  would  have  been  if  the  reservoir  had  not  been 
there. 

On  the  whole  matter,  I  thought  it  right  to  express  that  opinion, 
because  I  think  this  inquiry  into  what  might  have  happened  if 
the  reservoir  had  not  been  there  is  wholly  irrelevant,  and,  more- 
over, is  inconsistent  with  the  true  construction  of  the  43rd  section 
of  the  statute,  which,  in  my  opinion,  makes  it  an  absolute  condi- 
tion of  the  right  to  make  the  reservoir  that  damage  arising  from 
it  shall  lie  paid  without  inquiry  as  to  the  contingencies  of  which 
your  Lordships  speak. 

The  appellant  appealed  to  the  House  of  Lords. 

On  the  hearing  of  the  appeal,  the  parties  concurred  in  stating 
that  they  desired  to  have  the  dispute  between  them  settled  by  the 
Court  of  Session  rather  than  by  an  arbitrator.  , 

In  the  argument  for  the  appellant,  Fletcher  v.  Rylands  (ante, 
p.  238),  and  Nichols  v.  Marsland  (ante,  p.  262)  were  cited. 

For  the  respondent  (besides  the  eases  referred  to  in  the  judg- 
ments below  given),  New  River  Co.  v.  Johnson  (29  L.  J.  M.  C.  93), 
Read  v.  Victoria  Station  &  Piinlico  Ry.  Co.  (32  L.  J.  Ex.  167),  and 
Barber  v.  Nottingham  &  Grantham  Ry.  Co.  were  cited. 

The  House  took  time  for  consideration,  and  on  July  26  the  fol- 
lowing judgments  were  delivered. 

Lord  Blackburn.  My  Lords,  the  question  in  this  case  de- 
pends entirely  on  the  construction  of  two  lines  in  the  43rd  section 
of  the  Kirkcaldy  and  Dysart  Waterworks  Act,  1867;  but  though  it 
lies  in  so  small  a  compass,  it  is  one  on  which  there  has  been  a 
difference  of  opinion  in  the  court  below,  and  there  is  also  one  in 
this  House. 

The  Act  in  question  authorised  the  commissioners  to  impound 
the  waters  of  an  affluent  of  the  Lothrie  Burn  in  a  reservoir,  and 
thence  by  aqueducts  and  pipes  and  filtering  works  to  carry  a 
supply  of  water  to  the  towns  of  Kirkcaldy  and  Dysart.     Tt  re- 


ACCIDENT.  oOt> 


No.  11.  —  Rothes  v.  Kirkcaldy  Waterworks  Commissioners. 

quired  them  also  to  make  a  compensation  pond  called  the  Ballo 
reservoir,  on  the  upper  part  of  Lothrie  Burn,  and  store  up  the 
water  in  it  for  the  purpose  of  supplying  compensation  water  to 
those  interested  in  the  lower  part  of  the  Lothrie  Burn.  The  posi- 
tion and  size  of  this  Ballo  reservoir  is  fixed  with  precision  in  the 
Act;  and  it  is  required  that  the  works  shall  he  securely  made,  and 
that  a  waste  weir  fifty  feet  wide  shall  he  provided  for  the  Ballo 
reservoir.  So  that  the  commissioners  were  left  no  discretion  as  to 
how  they  were  to  make  and  maintain  this  reservoir.  If  there 
came  a  fall  of  rain  so  great  as  to  do  more  than  fill  the  reservoir, 
the  surplus  water  must  flow  over  the  waste  weir,  and  thence  flow 
down  into  the  Lothrie  Burn.  To  do  anything  to  hinder  this 
would  have  been  a  breach  of  the  duty  imposed  by  the  Act  upon 
the  commissioners.  What  happened  was,  that  there  was  a  very 
unusual  fall  of  rain  (as  much  as  six  inches  in  three  days),  and  the 
water  flowed  over  the  waste  weir  in  a  body  eighteen  inches  deep  ; 
and  this  quantity  of  water  raised  the  Lothrie  and  produced  a 
flood,  flowing  from  the  reservoir  certainly,  though  the  works  of 
the  reservoir  stood  firm,  and  the  water  did  not  rise  so  high  as  to 
flow  over  the  embankments. 

The  appellants  are  owners  of  the  lands  on  both  sides  of  the 
Lothrie  Burn,  up  to  a  point  .">60  yards  below  the  point  where  the 
water  flowing  from  the  Ballo  reservoir  joins  the  burn.  The  43rd 
section  of  the  Act  is  in  these  terms  :  "  The  commissioners  shall  be 
hound  to  make  good  to  the  said  Countess  of  Rothes,  and  her  heirs 
and  successors,  from  time  to  time,  all  damages  which  may  be  occa- 
sioned to  her  or  them  by  reason  of  or  in  consequence  of  any 
bursting,  or  flood,  or  escape  of  water  from,  any  reservoir,  aqueduct, 
or  pipe,  or  other  work  connected  therewith,  which  may  be  con- 
structed or  laid  by  the  commissioners ;  and  the  right  to  claim 
payment  of  such  damages  and  expenses  shall  not  be  lessened  by  the 
powers  conferred  by  this  Act  as  regards  inspection  and  seeing  to 
the  sufficiency  of  the  works,  either  during  the  construction  or  at 
the  completion  thereof,  or  by  anything  that  shall  have  been  done 
under  or  in  consequence  of  these  powers."  I  quite  agree  with  the 
Lord  Justice  Clerk  below,  when  he  says  :  "  Now,  my  Lords,  my 
opinion  is,  that  the  clause  in  the  statute  on  which  this  case  turns 
constitutes  an  obligation  upon  the  commissioners  as  part  of  the 
consideration  for  obtaining  the  statutory  powers  which  they  had 
not,  and  could  not  have  had  otherwise,  —  constitutes  an  obligation 


356  ACCIDENT. 


No.  11.  —  Rothes  v.  Kirkcaldy  Waterworks  Commissioners. 

of  absolute  protection  against  the  things  mentioned  in  that  clause." 
The  whole  question  in  my  mind  is,  What  are  we  to  understand  as 
being  the  things  mentioned  in  that  clause  ?  If  the  word  "  flood"  as 
there  used  means  any  flood  whatsoever  flowing  from  the  reservoir, 
it  is  beside  the  question  to  inquire  if  this  was  not  more  protection 
than  Lady  Rothes  could  reasonably  ask  for ;  she  has  in  that  view 
got  it  from  the  legislature,  and  the  decision  of  the  court  below  is 
wrong.  But  the  words  "bursting  or  escape  of  water  from  any 
reservoir,  aqueduct  or  pipe,"  &c,  are  things  which  can  only  occur 
when  the  works  have  in  some  way  proved  not  sufficient,  and  the 
commissioners  have  failed  in  doing  what  they  were  directed  to 
do.  And  if  the  word  "  flood  "  is  to  be  understood  as  limited,  in 
the  same  way  as  the  things  which  go  before  or  come  after,  to  flood 
occasioned  by  the  works  proving  defective,  and  is  not  to  extend 
to  a  flood  the  damage  from  which  would  have  had  to  be  borne  by 
the  appellants  if  there  had  been  no  works,  and  which  flowed  as 
it  did  from  the  works  being  made  and  maintained  in  the  very  way 
in  which  the  legislature  intended,  and  indeed  compelled  the  com- 
missioners to  make  and  maintain  them,  then  the  decision  of  the 
majority  of  the  court  below  was  right. 

I  quite  agree  that  no  court  is  entitled  to  depart  from  the  inten- 
tion of  the  legislature  as  appearing  from  the  words  of  the  Act, 
because  it  is  thought  unreasonable  ;  but  when  two  constructions 
are  open,  the  court  may  adopt  the  more  reasonable  of  the  two. 
I  do  not  think  it  is  possible  to  add  much  to  the  mere  statement 
of  the  case  ;  it  will  strike  one  mind  in  one  way  and  another  in 
a  different  one.  And  knowing,  as  I  do,  that  my  two  noble  and 
learned  friends  who  heard  the  case  differ  from  me,  I  should  have 
said  that  they  and  the  Lord  Justice  Clerk,  whose  opinion  they 
adopt,  were  probably  right ;  but  as  three  of  the  Scotch  judges  who 
heard  the  case  below  took  the  same  view  as  I  do,  I  am  confirmed 
in  my  opinion,  and  think  it  due  to  them  to  state  what  it  is.  The 
decision  of  this  House  will,  of  course,  be  in  conformity  with  the 
opinion  of  my  two  noble  and  learned  friends. 

Lord  Watson.  My  Lords;  the  only  question  which  it  is  neces- 
sary that  your  Lordships  should  decide  in  this  appeal  depends 
upon  the  just  construction  of  a  single  clause  in  a  local  and 
personal  statute,  entitled  "  The  Kirkcaldy  and  Dysart  Waterworks 
Act,  1867." 

The  respondents,  who  are  the  commissioners  incorporated  for  the 


ACCIDENT.  357 


No.  11.  —  Rothes  v.  Kirkcaldy  Waterworks   Commissioners. 

purpose  of  executing  the  Act,  are  thereby  empowered,  inter  alia,  to 

impound  and  store  up  the  waters  of  a  small  stream,  called  the 
"Lothrie  Burn,"  and  some  of  its  tributaries;  and  with  that  view- 
to  construct  two  ponds  or  reservoirs,  the  one  named  the  Drumaiu 
and  the  other  the  Ballo  reservoir.  The  Drumain  reservoir,  which 
is  upon  a  tributary  of  the  Lothrie,  is  intended  for  the  supply  of 
water  to  the  burghs  of  Kirkcaldy  and  Dysart.  The  Ballo  reser- 
voir, which  has  been  formed  by  damming  up  the  Lothrie  Burn 
itself,  is  intended  to  compensate  the  owners  and  occupiers  of 
lands,  mills,  and  manufactories,  and  all  other  persons  interested 
in  the  waters  of  the  burn,  and  its  tributaries  and  affluents,  and 
the  streams  into  which  they  flow,  for  the  water  abstracted  by 
means  of  the  Drumain  reservoir,  and  the  pipes  which  connect  it 
with  Kirkcaldy  and  Dysart.  The  statutory  obligation  of  the  re- 
spondents is,  to  cause  to  be  discharged  from  the  Ballo  reservoir 
into  the  channel  of  the  burn  750  gallons,  or  120  cubic  feet,  of 
water  per  minute  during  each  of  the  twenty-four  hours  of  every 
day  of  the  year. 

The  Lothrie  Burn,  at  a  point  in  its  course  from  half  to  three- 
quarters  of  a  mile  below  the  Ballo  reservoir,  enters  the  Leslie 
estate,  belonging  to  the  appellant,  the  Countess  of  Ptothes,  and 
runs  through  it  for  about  three  miles.  There  are  no  materials  in 
the  present  case  for  determining  whether  the  appellant,  as  an 
inferior  heritor,  could  have  objected  to  the  construction  of  the 
Ballo  reservoir  by  the  proprietor  of  the  solum,  provided  he  had 
merely  filled  it  in  time  of  flood,  and  had  thereafter  permitted  the 
natural  flow  of  the  burn  to  descend  undiminished  in  volume.  I 
see  no  reason,  however,  to  suppose  that  the  works  which  the  re- 
spondents are  authorised  to  construct  could,  of  themselves,  and 
apart  from  the  uses  made  of  them  by  the  respondents,  cause  any 
alteration  of  the  natural  flow  of  the  Lothrie  Burn  within  the 
Leslie  estate.  But  the  appellants  had  an  undoubted  legal  right  to 
prohibit  the  abstraction  of  a  single  drop  of  wTater  for  the  use  of 
Kirkcaldy  and  Dysart,  as  well  as  any  interference  with  the  natural 
flow  of  the  burn  through  or  over  the  Ballo  reservoir.  Lady  Rothes 
accordingly  appeared,  and  procured  the  insertion  of  various  clauses 
in  the  Act,  designed  for  the  protection  of  her  interests,  to  the  terms 
of  which  it  is  necessary  to  advert. 

First  of  all,  provision  is  made  (sect.  40)  for  the  construction  of 
the  works  in  a  solid,  substantial,  secure,  and  workmanlike  manner; 


358  ACCIDENT. 


No.  11.  —  Rothes  v.  Kirkcaldy  Waterworks   Commissioners. 

and  the  appellant,  and  her  heirs  and  successors,  are  authorised  to 
insist  on  an  inspection  of  the  works,  not  only  during  their  execution, 
but  at  any  time  after  their  completion,  by  an  engineer  mutually 
agreed  upon,  or,  failing  agreement,  to  be  appointed  by  the  sheriff 
of  the  county.  On  the  other  hand,  the  respondents  are  laid  under 
an  obligation  to  execute  the  works  as  such  engineer  shall  direct, 
••  so  as  to  secure  safety,"  and  specially  to  provide  a  waste  weir  fifty 
feet  wide  for  the  Ballo  reservoir.  The  purpose  of  these  enactments 
obviously  is  to  protect  the  appellants  against  the  possibility  of  the 
embankments  or  sluices  giving  way,  the  function  of  the  waste 
.weir,  or  by-wash,  as  it  is  also  called  in  these  proceedings,  being  to 
relieve  the  embankments  from  water  pressure  which  might  en- 
danger their  stability.  Then  follows  the  clause  (sect.  43)  with 
which  we  are  immediately  concerned.  It  provides  that  the  respon- 
dents shall  be  bound  to  make  good  to  the  appellant,  and  her  heirs 
and  successors,  from  time  to  time,  "  all  damages  which  may  be 
occasioned  to  her  or  them,  by  reason  or  in  consequence  of  any 
bursting,  or  flood,  or  escape  of  water  from  any  reservoir,  aqueduct, 
or  pipe,  or  other  work  connected  therewith,  which  may  be  con- 
structed or  laid  by  the  commissioners."  By  another  clause  (sect 
40),  the  terms  of  which  I  shall  have  to  notice  hereafter,  it  is 
enacted  that  the  compensation  payable  under  sect.  43  shall  be  set- 
tled by  arbitration  in  manner  provided  by  "  the  Lands  Clauses 
Consolidation  (Scotland)  Act,   1845." 

On  the  night  of  the  20th,  or  morning  of  the  21st  of  August. 
1877,  there  occurred  what  the  respondents  on  record  describe  as 
"  a  spate  of  extraordinary  violence "  in  the  upper  part  of  the 
Lothrie  Burn,  which  entered  the  Ballo  reservoir,  and  thence 
Mowed,  by  means  of  the  by-wash  and  compensation  sluice,  down 
the  channel  of  the  Lothrie  Burn.  The  action  in  which  this  appeal 
is  taken  was  instituted  by  the  appellant  on  the  allegation  that  the 
spate  in  question  occasioned  great  damage  to  her  property,  and 
concludes  (1st)  to  have  it  found  and  declared  that  the  respondents 
arc  liable  to  make  good  such  damage,  and  (2nd)  to  have  them 
ordained  either  to  enter  into  a  statutory  arbitration  in  order  to  fix- 
its  amount,  or  to  pay  the  amount  as  ascertained  in  the  course  of 
the  action.  It  appears  from  the  judgment  delivered  by  Lord  Oumi- 
dale,  and  it  is  not  disputed,  that,  in  the  court  below,  or  at  all  events 
in  the  Inner  House,  "both  parties  concurred  in  stating  that  it  was 
their  desire  to  have  the  dispute  between  them  settled  in  this  court, 


ACCIDENT.  359 


No.  11.  —  Rothes  v.  Kirkcaldy  Waterworks  Commissioners. 

under  and  in  terms  of  the  second  alternative  conclusion  of  the 
summons,  in  place  of  an  arbitration  under  the  Land  Clauses  Act." 
Upon  that  agreement  of  parties  I  have  only  this  observation  to 
make,  that  it  amounts,  in  ni)T  opinion,  to  nothing  more  than, a  waiver 
of  their  right  to  demand  a  statutory  reference  ;  and  that  tin,'  effect 
of  the  waiver  is  to  confer  upon  the  appellants  the  right  to  recover 
these  damages  by  ordinary  legal  process.  The  respondents'  con- 
tention that  the  effect  of  the  waiver  was  to  »*»t  the  case  as  regards 
damages  extra  cursum  cicrioe,  and  make  a  reference  to  the  Court  of 
Session,  appears  to  me  to  be  groundless  ;  but  that  is  a  matter  of 
little  consequence  in  the  view  which  I  take  of  this  case. 

The  appellant  in  the  court  below  maintained  that  the  respon- 
dents were  liable  for  the  damage  occasioned  to  her  property  by  the 
spate  or  flood  in  question,  upon  these  three  grounds :  (1)  that 
the  respondents  are,  by  sect.  43  of  the  statute,  made  liable  for 
damage  occasioned  by  a  flood  coming  from  the  Ballo  reservoir, 
whether  such  flood  be  due  to  the  existence  of  the  reservoir  and  its 
works  or  not;  (2)  that,  assuming  no  such  statutory  liability  to 
exist,  the  flood  was  materially  increased,  and  its  injurious  effects 
aggravated  by  the  respondents'  works;  and  (3)  that  the  whole  or 
a  material  part  of  the  damage  was  due  to  the  failure  or  neglect  of 
the  respondents  to  regulate  properly  the  quantity  of  water  in  the 
reservoir,  and  its  outflow  from  the  compensation  sluices.  The  Lord 
Ordinary,  whose  judgment  was  adhered  to  by  Lords  ORMIDALE  and 
Gifford,  the  majority  of  the  Second  Division  (the  Lord  Justice 
Clerk  dissenting  from  their  conclusion  as  to  the  first)  rejected  all 
these  contentions,  and  assoilzied  the  respondents.  The  appellant, 
at  your  Lordships'  bar,  did  not  insist  on  the  third  proposition 
maintained  by  her  in  the  court  below;  and  I  am  of  opinion,  with 
your  Lordships,  that  the  second,  which  involves  a  pure  question  of 
fact,  was  rightly  negatived  by  the  Judges  of  the  Court  of  Session. 
That  leaves  for  consideration  only  the  first  proposition,  which 
raises  a  question  of  law,  upon  the  construction  of  the  43rd  section 
of  the  Act  of  1867. 

The  Lord  Ordinary  and  the  Judges  who  agreed  with  him  were 
of  opinion  that  the  provisions  of  the  clause  did  nothing  more  than 
protect  Lady  Rothes  from  injuries  which  she  would  not  have 
suffered  if  the  reservoir  had  not  been  made.  That  result,  as  it 
appears  to  me,  can  only  be  reached  by  reading  the  word  "  flood," 
as  it  occurs  in  the  clause,  in  a  restricted  sense.     In  my  opinion, 


360  ACCIDENT. 


No.  11.  —  Rothes  v.  Kirkcaldy  Waterworks   Commissioners. 


"  flood  "  or  "  flood  of  water"  from  any  reservoir,  aqueduct,  &c,  are 
terms  which,  according  to  their  primary  and  natural  meaning, 
include  a  flood  coming  from  the  reservoir,  although  it  had  its 
origin  in  a  stream  or  streams  by  which  the.  reservoir  is  fed,  and 
will  therefore,  if  they  are  to  be  taken  in  that  sense,  apply  to  the 
flood  of  August,  1877,  in  respect  of  which  the  appellant  claims 
compensation.  No  doubt  the  words  may  have  a  narrower  mean- 
ing imposed  upon  them,  either  by  the  immediate  context,  or  by 
its  appearing  that  to  give  effect  to  them  in  their  wider  sense 
would  lead  to  results  so  unreasonable  or  inconvenient  as  to  be 
presumably  inconsistent  with  the  main  objects  of  the  Act.  It 
was  argued  for  the  respondents  that  there  are  considerations  to 
lie  found  in  the  present  case  which  tend,  on  both  these  grounds, 
to  limit  the  general  meaning  of  the  expression  "  flood  "  occurring 
in  §  43.  First  of  a!"  ;t  is  said  that  the  meaning  of  the  word 
must  be  determined  by  the  company  in  which  it  is  found ;  and 
that  being  associated  with  bursting  or  escape  of  water  from  a 
reservoir,  aqueduct,  or  pipe,  it  must  be  taken  to  signify  a  flood 
ejusdem  generis  with  that  occasioned  by  the  bursting  of  a  reservoir, 
or  the  escape  from  a  reservoir  of  water  which  ought  to  have  been 
retained  in  it.  To  that  reasoning  I  cannot  assent.  The  clause 
in  question,  so  far  as  regards  the  causes  of  damage  which  the 
respondents  are  to  make  good,  is  framed  on  the  principle  of 
enumeration  ;  the  three  causes  enumerated  being,  "  bursting  of 
water,"  "flood  of  water,"  and  "escape  of  water."  It  is  only  by 
so  reading  the  enumeration  that  the  grammatical  connection  of 
the  sentence  can  be  preserved.  Now,  what  I  understand  to  be  the 
object  of  enumeration  is,  to  set  forth  in  detail  things  which  are 
in  themselves  so  distinct  that  they  cannot  conveniently  be  com- 
prehended under  one  or  more  general  terms  ;  and  there  is,  in  my 
opinion,  no  a  priori  presumption  that  the  things  enumerated  are 
all  of  them  of  the  same  kind.  When  a  specific  enumeration  con- 
cludes with  a  general  term,  that  term  is,  by  a  well-known  canon 
of  construction,  held  to  be  limited  to  alia  similia.  The  respon- 
dents' argument  would  have  been  of  great  force  if  the  enumeration 
had  been  of  bursting  of  water,  escape  of  water,  or  "  other  floods  " 
from  the  reservoir ;  but  as  it  stands,  the  word  "  flood  "  is  an  inde- 
pendent member  of  the  enumeration,  and  I  can  find  nothing  in  the 
language  of  the  section  which  fairly  leads  to  the  implication  that 
thr  ordinary  meaning  of  the  word  is  to  be  limited  by  reference  to 
the  expressions,  "bursting  "  and  "  escape  of  water." 


ACCIDENT.  361 

No.  11.  —  Rothes  v.  Kirkcaldy  Waterworks  Commissioners. 


Again,  it  is  said  that  by  their  Act  the  respondents  are  not  only 
bound  to  give  a  constant  supply  of  compensation   water,  which 

implies  the  necessity  of  storage,  but  are  also  hound  to  construct 
and  maintain  a  waste  weir,  and  to  allow  all  surplus  water  to  escape 
by  it  into  the  Lothrie  Burn  ;  and,  moreover,  that  very  large  powers 
are  conferred  upon  the  proprietors  of  the  Leslie  estate,  with  tin- 
view  of  enabling  them  to  enforce  these  obligations.  These  statu- 
tory provisions,  it  is  argued,  are  inconsistent  with  the  idea  that 
the  legislature  intended  the  respondents  to  exercise  any  control 
over  floods  arising  in  the  Lothrie  Burn  and  its  affluents,  above  the 
Ballo  reservoir.  To  my  mind  that  is  not  a  self-evident  proposition. 
A  waste  weir  is  necessary  in  order  to  relieve  the  embankments  of 
the  reservoir  from  a  pressure  of  water  which  they  were  not  con- 
structed to  bear,  and  to  guard  against  the  serious  consequences 
which  might  result  from  their  giving  way  under  that  pressure. 
But,  notwithstanding  the  existence  of  the  waste  weir,  or  by-wash, 
the  respondents  have  unquestionably  the  means  at  their  command 
of  very  largely  regulating  and  controlling  the  flow  of  water  in  the 
channel  of  the  burn  below  the  reservoir  ;  and,  for  aught  that 
appears  to  the  contrary  in  this  case,  they  may  be  able  practically 
to  prevent  flooding,  unless  on  the  occasion  of  rainfall  so  excep- 
tional as  to  amount  almost  if  not  altogether  to  a  damnum  Jut/tie. 
I  am  unable,  therefore,  to  assume  that  the  legislature,  in  giving 
the  respondents  such  powers  of  regulation  and  control,  cannot 
have  intended  to  make  them  liable  for  all  kinds  of  flood  coming 
from  the  reservoir,  though  such  is  the  natural  import  of  the 
language  employed,  simply  because  the  legislature  has  also  taken 
precautions  to  secure  the  stability  of  the  respondents'  works. 

Last  of  all,  it  is  contended  by  the  respondents  that  to  give  the 
word  "flood"  its  ordinary  meaning  would  lead  to  results  so  unrea- 
sonable, that  the  legislature  cannot  be  supposed  to  have  used  it 
in  that  general  sense.  The  argument  might  be  of  some  weight  if 
your  Lordships  were  in  a  position  to  hold  that  it  has  a  foundation 
in  fact.  But  such  statutory  provisions  as  those  of  sect.  43,  occur- 
ring in  a  local  and  personal  Act,  must  be  regarded  as  a  contract 
between  the  parties,  whether  made  by  their  mutual  agreement 
or  forced  upon  them  by  the  legislature;  and,  viewing  them  as  a 
contract,  1  am  quite  unable  to  say  that  the  advantages  which  the 
appellants  obtain  under  sect.  43,  according  to  their  construction  of 
it,  as  well  as  under  the   other  clauses  of  the  Act,  constitute  an 


162  ACCIDENT. 


No.  11. — Rothes  v.  Kirkcaldy  Waterworks  Commissioners. 

excessive  and  unreasonable  consideration  for  the  benefits  which 
the  commissioners  have  derived  from  their  being  able  to  acquire 
by  compulsion  the  appellants'  right  and  interest  in  the  water  now- 
taken  from  the  Drumain  reservoir  to  Kirkcaldy,  and  for  the 
interference  with  the  natural  flow  of  the  Lothrie  Burn  occasioned 
by  the  use  made  of  the  Ballo  reservoir. 

The  language  of  sect.  49,  which  provides  for  the  assessment 
of  the  damages  for  which  the  respondents  are  by  sect.  43  made 
liable,  appears  to  me  to  favour  the  construction  for  which  the 
appellants  contend.  In  sect,  49  these  damages  are  described  as 
"  damages  through  flood  or  escape  of  water,  or  flooding  or  bursting 
of  any  of  the  reservoirs  authorised  by  this  Act,  or  works  connected 
therewith."  1  do  not  think  the  "  flooding  of  a  reservoir  "  can  arise 
from  causes  ejusdem  generis  with  the  bursting  of  a  reservoir,  or  the 
escape  of  water  which  ought  to  be  detained  in  the  reservoir.  The 
effect  of  these  causes  is  to  drain  or  empty  the  reservoir ;  whereas 
the  "  flooding  of  a  reservoir  "  must  be  due  to  some  cause  which 
fills  it  beyond  its  capacity,  so  that  it  overflows. 

I  am,  therefore,  of  opinion  that  the  interlocutors  appealed  from 
ought  to  be  reversed,  and  the  cause  remitted  to  the  court  below 
with  a  declaration  that  the  appellants  are  entitled,  by  virtue  of 
the  provisions  of  "  The  Kirkcaldy  and  Dysart  Waterworks  Act, 
1867/'  to  compensation  for  any  damage  occasioned  to  the  property 
of  the  appellant,  the  Countess  of  Rothes,  by  reason  of  the  flood  in 
question  from  the  Ballo  reservoir.  I  am  also  of  opinion  that  the 
appellants  ought  to  have  their  expenses  of  process  in  the  Court 
of  Session  from  and  after  the  date  of  the  interlocutor  of  the  Lord 
Ordinary  appealed  against,  as  well  as  the  costs  of  this  appeal ;  and 
I  move  accordingly. 

Lord  Fitzgerald.  My  Lords,  the  argument  on  this  appeal 
finally  eventuated  in  a  single  question,  viz.,  what  was  the  true 
construction  of  the  43rd  section  of  the  special  Act  in  reference  to 
the  extent  of  the  liability  of  the  defenders.  For  the  pursuer  it 
was  contended  that  on  the  true  interpretation  of  that  section  the 
defenders  were  bound  to  indemnify  her  from  damages  caused  by  a 
flood  of  water  coming  from  the  reservoir,  however  that  flood  of 
water  may  have  been  occasioned.  The  defenders,  on  the  other 
hand,  insisted  that  there  having  been  no  failure  or  insufficiency  in 
their  works,  and  no  negligence  or  default  on  their  part,  they  were 
not  responsible  for  damages  occasioned  by  a  flood  of  water  wholly 


ACCIDENT.  363 


No.  11.  —  Rothes  v.  Kirkcaldy  Waterworks  Commissioners. 

attributable  to  natural  causes,  unless  that  Mood  had  been  in  some 
way  augmented  by  the  reservoir.  The  Lord  Ordinary  was  of  that 
opinion,  and  the  question  is  whether  he  was  correct  in  his  view  of 
the  43rd  section.  If  he  was  not,  his  interlocutor  of  the  3rd  of 
December,  1878,  cannot  be  maintained. 

We  have  now,  therefore,  to  interpret  the  43rd  section  of  this  Act. 
There  can  be  little  difficulty  in  the  plain,  literal,  and  grammatical 
construction  of  the  section,  and  I  would  read  it  thus,  that  tin- 
defenders  "  shall  be  bound  "  to  indemnify  the  pursuer,  Lady  Rothes, 
from  all  damages  occasioned  by  reason  or  in  consequence  of  any 
bursting  of  any  reservoir,  aqueduct,  pipe,  or  other  works  connected 
therewith,  or  by  reason  of  or  in  consequence  of  any  flood  or  escape 
of  water  from  any  reservoir,  &c.  The  language  is  clear  and  simple  ; 
and  if,  on  looking  at  the  whole  scope  and  subject  of  the  enactment, 
we  find  nothing  to  indicate  a  contrary  intention,  we  are  coerced  to 
come  to  the  conclusion  that  the  pursuer's  contention  was  well 
founded. 

The  terms  of  sect.  49  seem  to  me  rather  to  support  that  view  of 
the  statute.  The  compensation  for  damages  through  flood  or 
escape  of  water  in  sect.  49  obviously  refers  to  the  claims  which 
may  arise  under  sect.  43  ;  and  its  language  may  be  used  to  throw 
light  on  or  to  interpret  sect.  43.  The  collocation  of  the  words  in 
sect.  49  is  different,  and  its  import  is  that  the  pursuer  would  be 
entitled  to  compensation  for  injury  through  any  flood  or  any  escape 
of  water  from,  or  any  flooding  of,  any  of  the  reservoirs. 

It  was  alleged  for  the  defenders  that  such  a  construction  would 
be  unreasonable,  and  that  it  ought  to  be  limited  to  those  cases  of 
flood-water  in  which  the  reservoir  or  works  by  their  existence 
there  increased  or  aggravated  the  flood;  but  it  seems  to  me  thai 
to  arrive  at  that  conclusion  we  must  interpolate  words  in  sect.  4.". 
which  are  not  to  be  found  in  that  section. 

It  was  urged  also  that  we  should  apply  the  rule  "ejusdem  gene- 
ris," or  "noscitur  a  sociis;"  but  that  maxim  is  properly  resorted  to 
where  otherwise  there  might  be  some  opening  for  ambiguity,  it 
would  not,  as  it  seems  to  me,  aid  us  on  the  present  occasion.  If 
the  language  of  that  section  is  not  clear,  then  the  rule  of  inter- 
pretation "contra  proferentem"  seems  to  me  to  be  specially  appli- 
cable. The  language  of  the  section  must  be  taken  as  that  of  the 
promoters  of  the  Act.  They  ask  the  legislature  to  grant  them 
large  powers  and  privileges,  and  they  propose  to  give  in  return  to 


364  ACCIDENT. 


No.  11.  —  Rothes  v.  Kirkcaldy  Waterworks  Commissioners. 

the  individuals  who  may  be  affected  certain  rights  and  protection. 
They  should  have  taken  care  to  define  with  accuracy  the  limits  of 
their  liability,  so  that  the  parties  whose  rights  they  interfere  with 
should  not  be  misled.  We  are  bound  to  put  a  construction  on  the 
section  as  favourable  to  the  pursuer  as  the  words  of  the  section 
will  fairly  and  reasonably  bear;  fur  the  words  are  not  hers  but  the 
promoters'. 

It  is  obvious  from  the  judgments  in  the  court  below  that  the 
majority  of  the  Judges  were  influenced  by  the  supposed  unreasona- 
bleness of  the  pursuer's  contention.  Thus  Lord  Ormidale  describes 
the  "  result "  as  one  "  so  unreasonable  and  extravagant  as  not  for  a 
moment  to  be  entertained."  Lord  GrlFFORD  describes  it  as  "both 
unreasonable  and  uniust,"  and,  again,  that  "it  would  be  against  all 
equity,"  so  that  "  it  could  not  have  been  the  intention  of  the  legis- 
lature to  make  the  defenders  liable  for  an  injury  with  which  they 
had  nothing  whatever  to  do."  If  the  result  would  be  unjust, 
unreasonable,  and  inequitable,  then  we  ought  not  to  adopt  the 
interpretation  unless  the  language  of  the  promoters  is  so  clear  as 
to  be  coercive.  I  propose  to  apply  the  test  of  unreasonableness, 
having  regard  to  the  surrounding  circumstances  at  the  time  of  the 
passing  of  the  Act,  to  be  collected  from  the  Act  itself.  I  do  not 
propose  for  a  moment  to  refer  to  the  evidence;  but  I  will  take  the 
surrounding  circumstances  as  they  appear  from  the  Act  itself,  and 
from  the  plans,  sections,  levels,  and  elevations  there  referred  to. 

Now,  first,  this  is  "an  Act  for  the  better  supplying  with  water 
the  parliamentary  burghs  of  Kirkcaldy  and  Dysarfc,  and  suburbs 
and  places  adjacent,  and  for  other  purposes;"  and  it  is  not  con- 
fined to  providing  water  for  the  population  merely,  but  it  is  also 
for  trade  and  manufactures.  In  order  to  carry  out  those  objects 
the  commissioners  are  first  incorporated.  Then,  under  sect.  35,  we 
have  an  insight  into  the  plans,  levels,  and  elevations  of  the  works 
to  be  constructed;  and  under  sect.  36  the  description  of  the  works 
themselves  leaves  no  doubt  as  to  what  is  to  be  done.  By  sect.  38 
the  incorporated  commissioners  receive  power  from  Parliament  "to 
take,  collect,  and  divert"  the  waters  of  the  burn  into  their  reser- 
voirs, and  there  "to  impound  and  store  up  the  waters  of  the  burn 
with  its  tributaries  and  affluents,  and  by  means  of  their  works  to 
convey,  appropriate,  and  use  the  said  waters  for  the  purposes  of  this 
Act."     Their  powers,  therefore,  are  very  extensive. 

My  Lords,  those   powers  had  in   some  respects   to  be  guarded 


ACCIDENT.  3G5 


No.  11.  —  Rothes   v.   Kirkcaldy  Waterworks   Commissioners. 

against.  For  instance,  I  presume  from  the  insight  given  us  by 
the  plans  here  that  the  Lothrie  Burn  was  an  ordinary  mountain 
stream  subject  to  sudden  and  considerable  tioodings,  quickly  pass- 
ing away.  But  I  presume  that  it  had  also  the  ordinary  character- 
istics of  such  a  stream  ;  that  it  had  the  means  of  relieving  itself 
from  the  pressure  of  flood  waters,  either  by  lateral  cuts  or  by  the 
natural  elevation  of  the  banks  enabling  it,  when  the  upper  waters 
of  the  burn  became  flooded,  to  give  itself  a  lateral  discharge.  But 
under  the  powers  of  this  Act  the  character  of  that  stream  is  to  be 
totally  altered;  it  is  to  be  converted  in  fact  into  a  canal,  in  which 
all  the  upper  waters  are  to  be  collected,  none  are  to  be  wasted  or 
lost,  but  all  are  to  be  stored  up  in  the  Ballo  reservoir.  If  the 
incorporated  commissioners  duly  carried  out  their  powers  and 
works  they  would  require  every  drop  of  that  water,  in  the  first 
instance,  for  compensation  purposes,  and  afterwards  for  the  larger 
purposes  of  the  act  of  Parliament ;  and  I  assume  that  they  took 
proper  means  to  secure  every  drop  of  water  coming  into  the  upper 
channel  of  this  small  river,  so  that  none  should  be  lost  but  that 
all  should  be  retained  in  the  reservoir.  It  may  be  said  in  fact  that 
the  character  of  the  upper  river  was  entirely  changed,  —  it  ceased 
to  exist  as  a  mere  mountain  stream,  and  it  became  a  river  entirely 
in  the  hands  of  the  commissioners,  who  by  virtue  of  their  works 
were  enabled  to  collect  and  store  up  the  entire  water  coming  into 
the  upper  burn. 

My  Lords,  when  we  look  again  below,  the  consequences  are  still 
more  formidable  ;  because  you  will  find  as  part  of  the  works  to  be 
established,  and  for  the  protection  of  the  embankment,  that  there 
was  to  be  a  by-wash  or  waste  weir.  That  waste  weir  was  to  be 
at  least  fifty  feet  wide,  and  at  an  elevation  of  sixty  feet  above  the 
channel,  the  by-wash  discharging  through  it,  in  flood  times  espe- 
cially, a  considerable  amount  of  water.  At  a  little  more  than  one 
hundred  yards  below  it  meets  the  ordinary  channel  of  the  Lothrie 
Burn.  But  it  is  obvious  from  the  description  of  the  stream,  and 
contrasting  it  with  the  discharging  power  of  the  by-wash,  that  the 
lower  stream  in  its  natural  state  would  be  quite  insufficient  for 
the  discharge  of  the  waters  which  would  be  brought  down  by  this 
large  and  formidable  aqueduct,  The  natural  result  from  that  (and 
I  may  call  in  aid  a  very  large  experience  in  arterial  drainage  cases) 
would  be  that  the  lower  channel  in  its  natural  state  being  unequal 
to  the  discharge  of  the  upper  waters  which  are  suddenly  thrown 


366  ACCIDENT. 


No.  11.    -Rothes  v.  Kirkcaldy  Waterworks  Commissioners.  —  Notes. 

upon  it,  the  waters  are  piled  up  and  are  forced  to  discharge  them- 
selves, causing  ruin  on  either  side.  Such  would  probably  be  the 
anticipated  result  of  the  works  to  be  formed  by  the  commissioners. 

My  Lords,  under  such  circumstances,  trying  the  question  by 
the  test  whether  it  is  reasonable  or  not,  I  should  say  that  in  the 
presence  of  such  a  probable  state  of  facts  indicated  by  the  sur- 
rounding circumstances  and  by  the  terms  of  the  Act,  in  the 
presence  of  a  danger  so  formidable,  it  was  not  unjust  or  unrea- 
sonable for  the  pursuer  to  stipulate  for  a  full  and  complete  indem- 
nity. She  was  to  be  deprived  of  all  control  and  of  all  means  of 
self-protection,  and  might  reasonably  insist  that  the  promoters 
should  accept  the  whole  responsibility  and  indemnify  her  from 
damage"  by  flood-waters  from  the  reservoir,  no  matter  how  caused. 

The  promoters  in  reply  presented  the  43rd  section,  — that  is  the  in- 
demnity which  they  offered.  It  has  been  sanctioned  by  Parliament, 
and  I  see  nothing  inequitable  in  it  or  in  its  interpretation.  My 
Lords,  such  was  practically  the  view  of  my  noble  and  learned 
friend  the  Lord  Justice  Clerk  in  the  Inner  House,  and  I  entirely 
concur  in  his  view. 

The  judgment  and  decree  of  the  Court  of  Session  were  accord- 
ingly reversed,  and  the  cause  remitted  to  the  Court  of  Session 
with  a  declaration  that  the  appellant  was  entitled,  under  the  Act, 
to  compensation  for  any  damage  occasioned  to  her  property  by 
reasons  of  the  flood  in  question  from  the  Ballo  reservoir;  and  a 
direction  as  to  costs  in  accordance  with  the  opinion  above  given  by 
Lord  Watson. 

ENGLISH   NOTES. 

The  above  case,  though  only  an  application  to  a  local  Act  of  the  well- 
known  doctrine  as  to  contract  embodied  in  the  preceding  rule,  appears 
sufficiently  important  to  stand  by  itself  as  a  ruling  case. 

That  a  local  and  personal  Act,  embodying  terms  specially  relating  to 
a  person  whose  interests  are  affected,  is  to  be  treated  as  a  contract,  is  a 
familiar  proposition.  Where  the  obligation  of  a  contract  is  especially 
stringent,  this  is  in  harmony  with  the  general  principle  that,  in  the 
construction  of  such  a  statute,  every  presumption  is  to  be  made  against 
the  company  and  in  favour  of  private  property;  per  Best  C.  J.. 
in  Scales  v.  Pickering  (1828),  4  Bing.  448,  452;  6  L.  J.  C.  P.  53.  So 
Tini>al  C.  J.,  in  Parks  y.  G.  W.  Ey.  Co.  (1844),  7  Scott  N.  R.  835, 
870;  13  L.  J.  C.  P.  105,  observes  that  the  language  of  these  Acts  is  to 
be  treated  as  the  language  of  their  promoters;  and  the  Act  should  there- 


OCCIDENT. 


No.  11.  —  Rothes  v.  Kirkcaldy  Waterworks  Commissioners.  —  Notes. 


fore  be  construed  strictly  against  the  promoters,  bul  liberally  in  favour 
of  the  public.  The  same  principle  is  embodied  in  I  he  judgment  of  Lord 
EliLENBO ROUGH  in  Gildart  v.  Gladstone  (1809),  11  East,  675;  and  in 
the  judgment  of  the  Lords  Justices  of  Appeal  in  Cloice*  v.  Staffordshire 
Potteries  Co.  (1873),  8  Ch.  125;  42  L.  J.  Ch.  L07. 

AMERICAN    NOTES. 

The  nearest  approach  to  the  doctrine  of  the  principal  case  in  this  country 
seems  to  be  in  the  instance  of  statutes  authorising  the  construction  of  rail- 
roads, and  binding  the  companies  to  make  good  certain  damages. 

In  Dodge  v.  Commissioners,  3  Metcalf  (Mass.),  380,  there  was  an  application 
for  a  mandamus  requiring  the  defendants  to  assess  damages  for  the  petitioners 
against  a  railroad  company  for  injury  to  their  dwelling-house  by  blasting  in 
the  construction  of  the  railway.  None  of  the  petitioners'  land  or  materials 
had  been  taken.  The  statute  provided  that  "every  railroad  corporation  shall 
be  liable  to  pay  all  damages  that  shall  be  occasioned  by  laving  out,  and  mak- 
ing and  maintaining  their  road,  or  by  taking  any  land  or  materials."  There 
was  no  charge  of  negligence  in  the  work.  Shaw,  C.  J.,  said  :  "  An  authority 
to  construct  any  public  work  carries  with  it  an  authority  to  use  the  appro- 
priate means.  An  authority  to  make  a  railroad  is  an  authority  to  reduce  the 
line  of  the  road  to  a  level,  and  for  that  purpose  to  make  cuts  as  well  through 
ledges  of  rock  as  through  banks  of  earth.  In  a  remote  and  detached  place, 
where  due  precautions  can  be  taken  to  prevent  danger  to  persons,  blasting  by 
gunpowder  is  a  reasonable  and  appropriate  mode  of  executing  such  a  work, 
and  if  due  precautions  are  taken  to  prevent  unnecessary  damage,  is  a  justifi- 
able mode.  It  follows  that  the  necessary  damage  occasioned  thereby  to  a 
dwelling-house  or  other  building,  which  cannot  be  removed  out  of  the  way  of 
such  danger,  is  one  of  the  natural  and  unavoidable  consequences  of  executing 
the  work,  and  within  the  provisions  of  the  statute.  Of  course,  this  reasoning 
will  not  apply  to  damages  occasioned  by  carelessness  or  negligence  in  executing 
such  a  work."  Mandamus  was  issued  as  prayed.  This  was  followed  in 
Brown  v.  Railroad  Co.,  5  Gray,  35,  and  the  same  doctrine  is  found  in  Sabin  v. 
17.  Cent.  R.  Co.,  25  Vermont,  303;  Whitehouse  v.  Androscoggin  R.  Co..  52 
Maine,  208.  In  the  Vermont  case  it  was  held  that  an  action  would  lie  for 
failure  to  remove  the  stones  thrown  on  tin1  land  by  blasting,  but  that  the 
action  must  be  case  and  not  trespass.  In  Carman  v.  Railroad  Co..  I  Ohio  St.. 
399,  an  action  was  sustained  against  the  company  for  injury  done  to  lands  not 
taken,  by  blasting  by  a  contractor  in  the  construction  of  the  road:  and  the 
same  was  held  of  an  injury  by  blasting  by  the  company's  own  employees,  in 
Georgetown,  Sfc.  Jig.  Co.  v.  Eagles,  9  Colorado,  544,  there  being  no  taking  of 
land  and  no  negligence,  but  a  direction  by  the  defendant  to  excavate  by  blast- 
ing. The  like  was  held  in  Stone  v.  Cheshire  R.  Corp..  Y.)  New  Hampshire, 
427,  case  for  a  corporeal  injury  to  the  plaintiff  by  the  contractor's  blasting. 
In  the  last  three  cases  the  principal  question  was  of  the  defendant's  liability 
for  the  act  of  the  contractor. 


168  ACCORD    AND    SATISFACTION. 


No.  1.  —  Pinnel's  Case.  —  Rule. 


ACCORD   AND   SATISFACTION. 


No.  1.  — PINNEL'S  CASE. 

(c.  p.  1602.) 

No.  2.  —  FOAKES   v.   BEER. 
(h.  l.   1884.) 

RULES. 

An  agreement,  not  under  seal,  to  accept  in  discharge  of  a 
liquid  debt,  a  smaller  sum  in  satisfaction,  and  the  payment 
of  such  smaller  sum,  cannot  be  satisfaction  of  the  whole. 

The  payment  of  the  smaller  sum,  whether  made  at  the 
time  of  or  subsequently  to  and  in  pursuance  of  the  agree- 
ment, merely  extinguishes  the  debt  pro  1anto,  and  the 
promise  to   forego  the  residue  is  without  consideration. 

But  the  gift  of  a  horse,  hawk,  &c,  in  satisfaction,  is 
good.  For  it  is  to  be  presumed  that  the  horse,  &c,  might 
be  more  beneficial  to  the  plaintiff  than  the  money. 

Payment  before  the  day.,  or  at  a  place  different  from  the 
place  of  payment  named  in  a  bond,  may  be  more  bene- 
ficial to  the  plaintiff,  and  therefore  may  be  made  and 
accepted   in  satisfaction 

An  acknowledgment  of  satisfaction  by  deed  is  a  good 
acquittance,  without  any  payment. 

Pinnel's  Case. 

Co.  Eep.  V.,  117  a. 

Pinnel  brought  an  action  of  debt  on  a  bond  against  Cole,  of  £16 
for  payment  of  £8  10s.,  the  11th  day  of  November,  1600.  The 
defendant  pleaded  that  he,  at  the  instance  of  the  plaintiff,  before 
the  said  day,  soil.    1   October,  anno  44,  apud  W.  solvit  querenti 


ACCORD    AND    SATISFACTION.  369 

No.  1.  —  Pinnel's  Case. 

£5  2s.  2d.  quas  quidem  £5  2s.  2d,  the  plaintiff  accepted  in  full 
satisfaction  of  the  £8  10*.  And  it  was  resolved  by  the  whole 
court  that  payment  of  a  lesser  sum  on  the  day  in  satisfaction  of 
a  greater  cannot  be  any  satisfaction  for  the  who],',  because  it 
appears  to  the  Judges,  that  by  no  possibility,  a  lesser  sum  can  be  a 
satisfaction  to  the  plaintiff  for  a  greater  sum  ;  but  the  gift  of  a 
horse,  hawk,  or  robe,  &c,  in  satisfaction,  is  good.  For  it  shall  be 
intended  that  a  horse,  hawk,  or  robe,  &c,  might  be  more  beneficial 
to  the  plaintiff  than  the  money,  in  respect  of  some  circumstance, 
or  otherwise  the  plaintiff  would  not  have  accepted  of  it  in  satis- 
faction. But  when  the  whole  sum  is  due,  by  no  intendment  the 
acceptance  of  parcel  can  be  a  satisfaction  to  the  plaintiff;  but  in 
the  case  at  bar  it  was  resolved  that  the  payment  and  acceptance  of 
parcel  before  the  day  in  satisfaction  of  the  whole  would  be  a  good 
satisfaction  in  regard  of  circumstance  of  time  ;  for  peradventure 
parcel  of  it  before  the  day  would  be  more  beneficial  to  him  than 
the  whole  at  the  day,  and  the  value  of  the  satisfaction  is  not 
material.  So  if  I  am  bound  in  £20  to  pay  you  £10  at  West- 
minster, and  you  request  me  to  pay  you  £5  at  the  day  at  York, 
and  you  will  accept  it  in  full  satisfaction  of  the  whole  £10,  it  is  a 
good  satisfaction  for  the  whole  ;  for  the  expenses  to  pay  it  at 
York  is  sufficient  satisfaction.  But  in  this  case  the  plaintiff  had 
judgment  for  the  insufficient  pleading  ;  for  he  did  not  plead  that 
he  had  paid  the  £5  2s.  2d.  in  full  satisfaction  (as  by  the  law  he 
ought),  but  pleaded  the  payment  of  part  generally,  and  that  the 
plaintiff  accepted  it  in  full  satisfaction.  And  always  the  manner 
of  the  tender  and  of  the  payment  shall  be  directed  by  him  who 
made  the  tender  or  payment,  and  not  by  him  who  accepts  it. 
And  for  this  cause  judgment  was  given  for  the  plaintiff. 

See  reader  26  H.  6,  Barre  37,  in  debt  on  a  bond  of  £10  the 
defendant  pleaded  that  one  F.  was  bound  by  the  said  deed  with 
him,  and  each  in  the  whole,  and  that  the  plaintiff  had  made  an 
acquittance  to  F.  bearing  date  before  the  obligation,  and  deliv- 
ered after,  by  which  acquittance  he  did  acknowledge  himself  to  be 
paid  20.s.  in  full  satisfaction  of  the  £10.  And  it  was  adjudged  a 
good  bar;  for  if  a  man  acknowledges  himself  to  be  satisfied  by 
deed,  it  is  a  good  bar,  without  anything  received.  Vide  12  E.  2, 
Barre  243,  26  H.  6,  Barre  37,  and  10  H.  7,  &c. 
vol.  i.  — 24 


370  ACCORD    AND    SATISFACTION. 


No.  2.  —  Foakes  v.  Beer. 


Foakes  v.  Beer. 

54  L.  J.  Q.  B.  130  (s.  c.  9  App.  Cas.  605). 

This  was  an  appeal  to  the  House  of  Lords  from  a  decision  of 
the  Court  of  Appeal  which  reversed  one  of  the  Queen's  Bench 
Division. 

The  respondent  having  recovered  judgment  for  £2090  from  the 
appellant,  agreed  with  the  appellant  in  writing  not  under  seal  to 
accept  payment  by  instalments  of  £500  down  and  £150  half  yearly 
till  the  whole  sum  should  be  paid.  The  appellant  fully  performed 
his  part  of  the  agreement,  and  the  respondent  then  claimed  to  issue 
execution  on  the  judgment  for  interest  on  the  judgment  debt. 

An  issue  was  directed  to  be  tried,  when  the  above  facts  were 
found  by  a  jury.  Cave,  J.,  ruled  that  the  respondent  was  not 
entitled  to  issue  execution  for  any  sum  on   the  judgment. 

His  decision  was  affirmed  by  a  divisional  court,  but  reversed  by 
the  Court  of  Appeal  upon  the  authority  of  Cumber  v.  Wane,  1 
Str.  426  ;  1  8m.  L.  C.  (8th  ed.)  .".57. 

Holl,  Q.  C,  and  Winch,  for  the  appellant.  There  is  nothing  in 
reason  or  —  except  the  case  of  Camber  v.  Wane,  supra — in  law 
to  make  this  agreement  invalid.  There  is  consideration  for  it,  for 
by  not  enforcing  his  claim  against  the  debtor  and  driving  him 
into  bankruptcy,  the  creditor  might  expect  to  be  paid  in  full  in- 
stead of  merely  getting  a  dividend.  If  the  creditor  thinks  the 
agreement  is  for  his  benefit,  why  should  the  court  say  it  is  not? 
('umber  v.  Wane,  supra,  has  been  assailed  frequently,  —  e. //.,  in 
Couldery  v.  Bartrum,  Law  Rep.  19  Ch.  I).  394,  per  Jessel,  M.  R., 
and  in  notes  to  Smith's  Leading  Cases,  1  Sm.  L.  C.  (4th  ed.)  253; 
(8th  ed.)  3G7,  by  Smith,  with  the  tacit  approval  of  all  his  editors, 
including  Sir  Henry  Keating  and  the  late  Mr.  Justice  Willes.  The 
reasoning  in  Cumher  v.  Wane,  supra,  would  not  be  regarded  as 
sound  now,  —  namely,  that  the  satisfaction  must  lie  held  reasonable 
by  the  court.  In  Reynolds  v.  Pinhoioe,  Cro.  Eliz.  429,  which  was 
not  cited  in  Cumber  v.  Wane,  supra,  it  was  held  that  the  saving 
of  trouble  was  a  sufficient  consideration  ;  and  see  Wilkinson  v. 
Byers,  1  Ad.  &  E.  106  ;  3  Law  J.  Rep.  K.  B.  144,  observations  of 
Littledale,  4.  In  PinneVs  Case,  5  Co.  Rep.  117,  the  question  of 
convenience  was  overlooked.  But  the  convenience  is  well  under- 
stood in  business,  as  is  shown  by  the  constant  practice  of  trades- 


ACCORD    AMi    SATISFACTION.  371 

No.  2.       Foakes  v.  Beer. 

men  to  allow  discount  for  prompt  payment  where  there  is  no 
agreement  to  give  credit.  In  fact  the  decision  in  Cumber  v.  Wane, 
supra,  has  never  been  acted  upon  in  practicej  and  the  courts  have 
confined  its  application  within  such  narrow  limits  that  there  is  no 
longer  any  principle  involved  in  it.  The  following  oases  are  really 
inconsistent  with  Cumber  v.  Wane,  supra;  Heathcote  v.  Crook- 
shanks,  2  Term  Rep.  24:  Thomas  v.  Heathom,  2  B.  &  C.  477; 
Sibree  v.  Tripp,  15  M.  &  W.  23;  15  Law  J.  Rep.  Exch.  318; 
Curlewisv.  Clark,  3  Exch.  Rep.  375;  18  Law  J.  Rep.  Exch.  144; 
Fitch  v.  Sutton,  5  East,  230,  in  which  it  was  held  that  payment  of 
a  less  sum  by  cheque  was  not  a  satisfaction,  is  (dearly  wrong: 
Goddard  v.  (J Brim,  Law  Rep.,  9  Q.  B.  1).  37.  If  Cumber  v.  Wane, 
supra,  is  to  be  maintained,  the  result  of  the  cases  is  that  there 
may  be  satisfaction  by  acceptance  of  a  less  sum  if  it  be  secured  by 
cheque,  bill,  or  promissory  note,  not  if  it  be  paid  in  gold  or  bank- 
notes. In  the  present  case  the  agreement  was  not  to  take  a  less 
sum,  but  merely  to  give  time. 

Bompas,  Q..C,  and  A.  I).  P.  Gaskell,  for  the  respondent.  Part 
payment  is  no  consideration  for  giving  up  the  residue  of  a  debt, 
.-dnce  the  performance  of  what  the  law  imposes  as  a  duty  cannot 
be  a  consideration.  Cumber  v.  Wane,  supra,  is  supported  by  a 
series  of  authorities, — -Dixon  v.  Adams,  Cro.  Eliz.  538;  Richards 
v.  Bartlets,  1  Leon.  19;  Goring  v.  Goring,  Yelv.  10:  Geang  v. 
Sir  a!  nc,  1  Lutw.  464 ;  McManus  v.  Burl-,  39  Law  J.  Rep.  Exch.  65  ; 
Law  Rep.  5  Exch.  65;  Fitch  v.  Sutton,  supra;  Co.  Lit,  212b; 
Adams  v.  Tapling,  4  Mod.  88  ;  Down  v.  Hatcher,  10  Ad.  &  E.  121; 
8  Law  J.  Rep.  Q.  B.  190,  and  Evans  v.  Powis,  1  Exch.  Rep.  601. 
All  the  cases  in  which  Cumber  v.  Wane,  supra,  has  been  more  or 
less  departed  from,  treat  it  as  law  that  the  payment  of  a  smaller 
.sum  than  is  due  is  not  sufficient.  It  is  a  matter  of  public  policy 
that  a  man  should  not  be  allowed  to  refuse  to  pay  debts,  and 
then  make  his  refusal  to  pay  a  consideration  for  extorting  more 
favourable  terms  from  his  creditor.  This  has  been  laid  down  as 
to  seamen's  wages  in  Stilk  v.  Myrick,  2  Camp.  317;  Harris  v. 
Watson,  Peake,  72  ;  Newman  v.  Walters,  8  Bos.  &  P.  612  ;  Clutter- 
buck  v.  Collin,  4  Sc.  N.  R.  509  ;  11  Law  J.  Rep.  C.  P.  65,  and  Harris 
v.  Carter,  3  E.  &  B.  559  ;  23  Law  J.  Rep.  Q.  B.  295. 

[Lord  Blackburn.  The  doctrine  of  Cumber  v.  Wane,  supra, 
has  never  been  laid  down  in  this  House,  nor  (except  in  Dixon  v. 
Adams,  supra,  which  went  t< io  far)  in  a  Court  of  Error.] 


372  ACCORD    AXD    SATISFACTION. 

No.  2.  —  Foakes  v.  Beer. 

It  was  too  firmly  established  ever  to  be  the  subject  of  appeal. 
The  House  will  not  treat  it  with  less  respect  on  that  account. 
Danford  v.  McAnulty,  52  Law  J.  Eep.  Q.  B.  652  ;  Law  Eep.,  8  App. 
Cas.  456. 

[Lord  Blackburn.  It  has  not  been  acted  upon  in  mercantile 
practice,  and  not  often  in  the  courts.] 

It  has  been  always  recognised  as  law,  and  cannot  now  be  over- 
ruled. Lovelace  v.  Cocket,  1  Brownl.  47,  and  ffawes  v.  Birch,  ib. 
71,  carried  ihe  rule  still  further. 

Holl,  Q.  C,  in  reply.  The  decisions  as  to  seamen's  wages  are 
put  upon  special  grounds  of  public  policy  applicable  to  such  cases. 

Car.  adv.  vult. 

The  Lord  Chancellor  (Earl  of  Selborne)  (on  May  16).  Upon 
the  construction  of  the  agreement  of  the  21st  of  December,  1876, 
I  cannot  differ  from  the  conclusion  in  which  both  the  courts 
below  were  agreed.  If  the  operative  part  could  properly  be  con- 
trolled by  the  recitals,  1  think  there  would  be  much. reason  to  say 
that  the  only  thing  contemplated  by  the  recitals  was  giving  time 
for  payment,  without  any  relinquishment  on  the  part  of  the  judg- 
ment creditor  of  any  portion  of  the  amount  recoverable  (whether 
for  principal  or  for  interest)  under  the  judgment.  But  the  agree- 
ment of  the  judgment  creditor,  which  follows  the  recitals,  is  that 
she  "will  not  take  any  proceedings  whatever  on  the  judgment,"  if 
a  certain  condition  is  fulfilled.  What  is  that  condition  ?  Payment 
of  the  sum  of  £150  in  every  half  year,  "  until  the  whole  of  the  said 
sum  of  £2,090  19s."  (the  aggregate  amount  of  the  principal  debt 
and  costs,  for  which  judgment  had  been  entered)  "shall  have  been 
fully  paid  and  satisfied."  A  particular  "sum"  is  here  mentioned, 
which  does  not  include  the  interest  then  due,  or  future  interest. 
Whatever  was  meant  to  be  payable  at  all,  under  this  agreement, 
was  clearly  to  be  payable  by  half-yearly  instalments  of  £150  each  ; 
any  other  construction  must  necessarily  make  the  conditional 
promise  nugatory.  But  to  say  that  the  half-yearly  payments 
were  to  continue  till  the  whole  sum  of  £2,090  19s.,  "and  interest 
thereon,"  should  have  been  fully  paid  and  satisfied,  would  be  to 
introduce  very  important  words  into  the  agreement,  which  are  not 
there,  and  of  which  I  cannot  say  that  they  are  necessarily  implied. 
Although,  therefore,  I  may  (as  indeed  I  do)  very  much  doubt, 
whether  the  effect  of  the  agreement,  as  a  conditional  waiver  of  the 


ACCOHD    AND    SATISFACTION.  373 

No.  2.  —  Foake3  v.  Beer. 

interest  to  which  she  was  by  law  entitled  under  the  judgment,  was 
really  present  to  the  mind  of  the  judgment  creditor,  still  I  cannot 
deny  that  it   might  have   that  effect,  if  capable   of  being   legally 

enforced. 

But  the  question  remains  whether  the  agreement  is  capable  of 
being  legally  enforced.  Not  being  under  seal,  it  cannot  he 
legally  enforced  against  the  respondent  unless  she  received  consid- 
eration for  it  from  the  appellant,  or  unless,  though  without  con- 
sideration, it  operates  by  way  of  accord  and  satisfaction  so  as  to 
extinguish  the  claim  for  interest.  What  is  the  consideration  '.  On 
the  face  of  the  agreement  none  is  expressed  except  a  present  pay- 
ment of  £500  on  account  and  in  part  of  the  larger  debt  then  due 
and  payable  by  law  under  the  judgment.  The  appellant  did  not 
contract  to  pay  the  future  instalments  of  £150  each  at  the  times 
therein  mentioned  ;  much  less  did  he  give  any  new  security  in  the 
shape  of  negotiable  paper  or  in  any  other  form.  The  promise  de 
futuro  was  only  that  of  the  respondent  that,  if  the  half-yearly 
payments  of  £150  each  were  regularly  paid,  she  would  "  take  no 
proceedings  whatever  on  the  judgment."  Xo  doubt,  if  the  appel- 
lant had  been  under  no  antecedent  obligation  to  pay  the  whole 
debt,  his  fulfilment  of  the  condition  might  have  imported  some 
consideration  on  his  part  for  that  promise.  But  he  was  under  that 
antecedent  obligation  ;  and  payment  at  those  deferred  dates,  by  the 
forbearance  and  indulgence  of  the  creditor,  of  the  residue  of  the 
principal  debt  and  costs,  could  not,  in  my  opinion,  be  a  considera- 
tion for  the  relinquishment  of  interest  and  discharge  of  the  judg- 
ment, unless  the  payment  of  the  £500  at  the  time  of  signing  the 
agreement  was  such  a  consideration.  As  to  accord  and  satisfac- 
tion, in  point  of  fact  there  could  he  no  complete  satisfaction  so 
long  as  any  future  instalment  remained  payable  ;  and  I  do  not  see 
how  any  mere  payments  on  account  could  operate  in  law  as  a  satis- 
faction ail  interim  conditionally  upon  other  payments  being  after- 
wards duly  made,  unless  there  was  a  consideration  sufficient  to 
support  the  agreement  while  still  unexecuted.  Nor  was  anything, 
in  fact,  done  by  the  respondent  in  this  case,  on  the  receipt  of  the 
last  payment,  which  could  be  tantamount  to  an  acquittance  if  the 
agreement  did  not  previously  bind  her. 

The  question,  therefore,  is  nakedly  raised  by  this  appeal  whether 
your  Lordships  are  now  prepared  not  only  to  overrule,  as  contrary 
to  law,  the  doctrine  stated  by  Sir  Edward  Coke  to  have  been   laid 


374  ACCORD    AND    SATISFACTION. 

No.  2.  —  Foakes  v.  Beer. 

down  by  all  the  Judges  of  the  Common  Pleas  in  Pinnel's  Case,  5 
Co.  Rep.  117,  in  1602,  and  repeated  in  his  note  to  Littleton,  section 
344,  Co.  Lit.  212  b,  but  to  treat  a  prospective  agreement  not  under 
seal  for  satisfaction  of  a  debt,  by  a  series  of  payments  on  account 
to  a  total  amount  less  than  the  whole  debt,  as  binding  in  law,  pro- 
vided those  payments  are  regularly  made,  —  the  case  not  being  one- 
of  a  composition  with  a  common  debtor,  agreed  to  inter  se  by  sev- 
eral creditors.  I  prefer  so  to  state  the  question,  instead  of  treating; 
it  (as  it  was  put  at  the  Bar)  as  depending  on  the  authority  of  the 
case  of  Cumber  v.  Wane,  1  Str.  426  ;  1  Sin.  L.  C.  (8th  ed.)  357, 
decided  in  1718.  It  may  well  be  that  distinctions  which  in  later 
cases  have  been  held  sufficient  to  exclude  the  application  of  that 
doctrine  existed  and  were  improperly  disregarded  in  Camber  v. 
Wane,  supra,  and  yet  that  the  doctrine  itself  may  be  law,  rightly 
recognised  in  Cumber  v.  Wane,  supra,  and  not  really  contradicted 
by  any  later  authorities.  And  this  appears  to  me  to  be  the  true- 
state  of  the  case.  The  doctrine  itself,  as  laid  down  by  Sir  Edward 
Coke,  may  have  been  criticised  as  questionable  in  principle  by 
some  persons  whose  opinions  are  entitled  to  respect,  but  it  has 
never  been  judicially  overruled  ;  on  the  contrary,  1  think  it  has 
always,  since  the  sixteenth  century,  been  accepted  as  law.  If  so, 
I  cannot  think  that  your  Lordships  would  do  right  if  you  were 
now  to  reverse  as  erroneous  a  judgment  of  the  Court  of  Appeal 
proceeding  upon  a  doctrine  which  has  been  accepted  as  part  of  the 
law  of  England  for  280  years. 

The  doctrine,  as  stated  in  Pinnel's  Case,  -supra,  is,  "that  pay- 
ment of  a  lesser  sum  on  the  day"  (it  would  of  course  be  the  same 
after  the  day)  "in  satisfaction  of  a  greater,  cannot  be  any  satis- 
faction for  the  whole,  because  it  appears  to  the  Judges  that  by  no 
possibility  a  lesser  sum  can  be  a  satisfaction  to  the  plaintiff  for  a 
greater  sum."  As  stated  in  Coke  on  Littleton  (212  h),  it  is,  "  where 
the  condition  is  fur  payment  of  £20,  the  obligor  or  feoffor  cannot 
at  the  time  appointed  pay  a  lesser  sum  in  satisfaction  of  the  whole, 
because  it  is  apparent  that  a  lesser  sum  of  money  cannot  be  a 
satisfaction  of  a  greater;"  adding  (what  is  beyond  controversy) 
that  an  acquittance  under  seal  in  full  satisfaction  of  the  whole 
would  (under  like  circumstances)  be  valid  and  binding. 

The  distinction  between  the  effect  of  a  deed  under  seal  and  that 
of  an  agreement  by  parol,  or  by  writing  not  under  seal,  may  seem 
arbitrary,  but  it  is  established  in  our  law  ;  nor  is  it  really  unrea- 


ACCORD    AND    SATISFACTION.  o  /  L> 

No.  2.  —  Foakes  v.  Beer. 

sonable  or  practically  inconvenient  that  the  law  should  require 
particular  solemnities  to  give  to  a  gratuitous  contract  the  force 
of  a  binding  obligation.  If  the  question  be  (as,  in  the  actual  state 
of  the  law,  I  think  it  is)  whether  consideration  is  or  is  not  given 
in  a  case  of  this  kind  by  the  debtor  who  pays  down  part  of  the 
debt  presently  due  from  him  for  a  promise  by  the  creditor  to  relin- 
quish, after  certain  further  payments  on  account,  the  residue  of  the 
debt,  I  cannot  say  that  I  think  consideration  is  given  in  the  sense 
in  which  I  have  always  understood  that  word  as  used  in  our  law. 
It  might  be  (and  indeed  I  think  it  would  be)  an  improvement  in 
our  law  if  a  release  or  acquittance  of  the  whole  debt  on  payment 
of  any  sum  which  the  creditor  might  be  content  to  receive  by  way 
of  accord  and  satisfaction  (though  less  than  the  whole)  were  held 
to  be  generally  binding,  though  not  under  seal ;  nor  should  I  be 
unwilling  to  see  equal  force  given  to  a  prospective  agreement,  like 
the  present,  in  Writing,  though  not  under  seal;  but  I  think  it  im- 
possible, without  refinements  which  practically  alter  the  sense  of 
the  word,  to  treat  such  a  release  or  acquittance  as  supported  by 
any  new  consideration  proceeding  from  the  debtor.  All  the  authori- 
ties subsequent  to  Cumber  v.  Wane,  supra,  which  were  relied  upon 
by  the  appellant  at  your  Lordship's  bar — such  as  Sibree  v.  Tripp, 
supra,  Gurlewis  v.  Clark,  supra,  and  Goddard  v.  O'Brien,  supra, 
—  have  proceeded  upon  the  distinction  that,  by  giving  negotiable 
paper  or  otherwise,  there  had  been  some  new  consideration  for  a 
new  agreement,  distinct  from  mere  money  payments  in  or  towards 
discharge  of  the  original  liability.  I  think  it  unnecessary  to  go 
through  those  cases  or  to  examine  the  particular  grounds  on  which 
each  of  them  was  decided.  There  are  no  such  facts  in  the  case  now 
before  your  Lordships.  What  is  called  "  any  benefit,  or  even  any 
legal  possibility  of  benefit,"  in  Mr.  Smith's  notes  to  Cumber  v. 
Wane,  supra,  is  not,  as  I  conceive,  that  sort  of  benefit  which  a 
creditor  may  derive  from  getting  payment  of  part  of  the  money  due 
to  him  from  a  debtor  who  might  otherwise  keep  him  at  arm's  length 
or  possibly  become  insolvent,  but  is  some  independent  benefit,  actual 
or  contingent,  of  a  kind  which  might  in  law  be  a  good  and  valu- 
able consideration  for  any  other  sort  of  agreement  not  under  seal. 

My  conclusion  is  that  the  order  appealed  from  should  be  af- 
firmed and  the  appeal  dismissed  with  costs,  and  I  so  move  your 
Lordships. 


376  ACCORD    AND    SATISFACTION. 

No.  2.  —  Foakes  v.  Beer. 

Lord  Blackburn.  The  first  question  raised  is  as  to  what  was 
the  true  construction  of  the  memorandum  of  agreement  made  on 
the  21st  of  December,  1876.  What  was  it  that  the  parties  by 
that  writing  agreed  to? 

The  appellant  contends  that  they  meant  that  on  payment  down 
of  £500,  and  payment  within  a  month  after  the  1st  of  July  and  the 
1st  of  January  in  each  ensuing  year  of  £150  until  the  sum  of 
£2090  19s.  was  paid,  the  judgment  for  that  sum  and  interest 
should  be  satisfied;  for  an  agreement  to  take  no  proceedings  on  the 
judgment  is  equivalent  to  treating  it  as  satisfied.  This  construc- 
tion of  the  memorandum  requires  that  after  the  tenth  payment  of 
<£  150  there  should  be  a  further  payment  of  £90  19s.  made  within 
the  next  six  months. 

This  is  the  construction  which  all  three  courts  below  have  put 
upon   the  memorandum. 

The  respondent  contends  that  the  true  construction  of  the  memo- 
randum was  that  time  was  to  be  given  on  those  conditions  for  five 
years,  the  judgment  being,  on  default  of  any  one  payment,  enforce- 
able for  whatever  was  still  unpaid,  with  interest  from  the  date  the 
judgment  was  signed,  but  that  the  interest  was  not  intended  to  ln- 
forgiven  at  all. 

If  this  is  the  true  construction  of  the  agreement,  the  judgment 
appealed  against  is  right  and  should  be  affirmed,  whether  the  reason 
on  which  the  Court  of  Appeal  founded  its  judgment  was  right  or 
not.  1  am,  however,  of  opinion  that  the  courts  below,  who  on  this 
point  were  unanimous,  put  the  true  construction  on  the  memoran- 
dum. I  do  not  think  the  question  free  from  difficulty.  It  would 
have  been  easy  to  have  expressed,  in  unmistakable  words,  that  on 
payment  down  of  £500,  and  punctual  payment  at  the  rate  of 
£300  a  year  till  £2090  19s.  was  paid,  the  judgment  should  not 
be  enforced  either  for  principal  or  interest  ;  or  language  might 
have  been  used  which  should  equally  clearly  have  expressed  that. 
though  time  was  to  be  given,  interest  was  to  be  paid  in  addition  to 
tin;  instalments.  The  wrords  actually  used  are  such  that  I  think 
it  is  quite  possible  that  the  two  parties  put  a  different  construction 
<m  the  words  at  the  time;  but  I  think  the  words  "  till  the  said 
sum  of  £2090  19s.  shall  have  been  fully  paid  and  satisfied  "  cannot 
be  construed  as  meaning  "till  that  sum,  with  interest  from  the 
day  judgment  was  signed,  shall  have  been  fully  paid  and  satisfied," 
nor  can  the  promise  "not  to  take  any  proceedings  whatever  on  the 


ACCORD    AND    SATISFACTION.  377 

No.  2.  —  Foakes  v.  Beer. 

judgment"  be  cut  down  to  meaning  any  proceedings  except  those 
necessary  to  enforce  payment  of  interest. 

I  think,  therefore,  that  it  is  necessary  to  consider  the  ground  on 
which  the  Court  of  Appeal  did  base  their  judgment,  and  to  say 
whether  the  agreement  can  be  enforced.  I  construe  it  as  accepting 
and  taking  £500  in  satisfaction  of  the  whole  £2090  19s.,  subject 
to  the  condition  that  unless  the  balance  of  the.  principal  debt  was 
paid  by  the  instalments,  the  whole  might  be  enforced  with  interest. 
If  instead  of  £500  in  money  it  had  been  a  horse  valued  at  £500, 
or  a  promissory  note  for  £500,  the  authorities  are  that  it  would 
have  been  a  good  satisfaction  ;  but  it  is  said  to  be  otherwise  as  it 
was  money. 

This  is  a  question,  I  think,  of  difficulty. 

In  Co.  Lit  212  b,  Lord  Coke  says:  "Where  the  condition  is  for 
payment  of  £20,  the  obligor  or  feoffor  cannot  at  the  time  appointed 
pay  a  lesser  sum  in  satisfaction  of  the  whole,  because  it  is  apparent 
that  a  lesser  sum  of  money  cannot  be  a  satisfaction  of  a  greater. 
...  If  the  obligor  or  feoffor  pay  a  lesser  sum  either  before  the 
day  or  at  another  place  than  is  limited  by  the  condition,  and  the 
obligee  or  feoffee  receiveth  it,  this  is  a  good  satisfaction."  For  this 
he  cites  Pinners  Case.  That  was  an  action  on  a  bond  for  £1G  con- 
ditioned for  the  payment  of  £8  10s.  on  the  11th  of  November, 
1600.  Plea,  that  defendant,  at  plaintiffs  request,  before  the  said 
day, — to  wit,  on  the  1st  of  October, —  paid  to  the  plaintiff 
£5  2s.  2d.  which  the  plaintiff  accepted  in  full  satisfaction  of  the 
£8  10s.  The  plaintiff  had  judgment  for  the  insufficient  pleading. 
But  though  this  was  so,  Lord  Coke  reports  that  it  was  resolved 
by  the  whole  Court  of  Common  Pleas  "  that  payment  of  a  lesser 
sum  on  the  day  in  satisfaction  of  a  greater  cannot  be  any  satis- 
faction for  the  whole,  because  it  appears  to  the  Judges  that  by  uo 
possibility  a  lesser  sum  can  be  a  satisfaction  to  the  plaintiff  for  a 
greater  sum  ;  but  the  gift  of  a  horse,  hawk,  or  robe,  &c,  in  satis- 
faction, is  good.  For  it  shall  be  intended  that  a  horse,  hawk,  or 
robe,  &c,  might  be  more  beneficial  to  the  plaintiff  than  the  money 
in  respect  of  some  circumstance,  or  otherwise  the  plaintiff  would 
not  have  accepted  of  it  in  satisfaction.  But  when  the  whole 
sum  is  due,  by  no  intendment  the  acceptance  of  parcel  can  be 
a  satisfaction  to  the  plaintiff;  but  in  the  case  at  bar  it  was 
resolved  that  the  payment  and  acceptance  of  parcel  before  the 
clay  in  satisfaction  of  the  whole  would  be  a  good  satisfaction    in 


378  ACCOUD    AND    SATISFACTION. 

No.  2.  —  Foakes  v.  Beer. 

regard  of  circumstance  of  time ;  for  peradventure  parcel  of  it 
before  the  day  would  be  more  beneficial  to  him  than  the  whole  at 
the  day,  and  the  value  of  the  satisfaction  is  not  material.  So  if  I 
am  bound  in  £20  to  pay  you  £10  at  Westminster,  and  you  request 
me  to  pay  you  £5  at  the  day  at  York,  and  you  will  accept  it  in  full 
satisfaction  for  the  whole  £10,  it  is  a  good  satisfaction  for  the  whole, 
for  the  expenses  to  pay  it  at  York  is  sufficient  satisfaction." 

There  are  two  tilings  here  resolved.  First,  that  where  a  matter 
paid  and  accepted  in  satisfaction  of  a  debt  certain  might  by  any  pos- 
sibility be  more  beneficial  to  the  creditor  than  his  debt,  the  court  will 
not  inquire  into  the  adequacy  of  the  consideration.  If  the  creditor, 
without  any  fraud,  accepted  it  in  satisfaction  when  it  was  not  a 
sufficient  satisfaction,  it  was  his  own  fault;  and  that  payment  before 
the  day  might  be  more  beneficial,  and  consequently  that  the  plea 
was  in  substance  good,  and  this  must  have  been  decided  in  the  case. 

There  is  a  second  point  stated  to  have  been  resolved,  —  namely, 
"  That  payment  of  a  lesser  sum  on  the  day  cannot  be  any  satis- 
faction of  the  whole,  because  it  appears  to  the  Judges  that  by  no 
possibility  a  lesser  sum  can  be  a  satisfaction  to  the  plaintiff  for  a 
greater  sum."  This  was  certainly  not  necessary  for  the  decision 
of  the  case ;  but  though  the  resolution  of  the  Court  of  Common 
Pleas  was  only  a  dictum,  it  seems  to  me  clear  that  Lord  Cork 
deliberately  adopted  the  dictum,  and  the  great  weight  of  his 
authority  makes  it  necessary  to  be  cautious  before  saying  that 
what  he  deliberately  adopted  as  law  was  a  mistake.  And  though 
T  cannot  find  that  in  any  subsequent  case  this  dictum  has  been 
made  the  ground  of  the  decision, —  except  in  Fitch  v.  Sutton,  supra, 
as  to  which  I  shall  make  some  remarks  later,  and  in  Down  v. 
Hatcher,  supra,  as  to  which  Mr.  Baron  Pabke  in  Cooper  v.  Parker, 
15  Com.  B  Rep.  828;  24  Law  J.  Rep.  C.  P.  6S,  said,  "Whenever 
tin-  question  may  arise  as  to  whether  Down  v.  Hotelier,  supra,  is 
good  law,  1  should  have  a  great  deal  to  say  against  it,"  —  yet  there 
certainly  are  cases  in  which  great  Judges  have  treated  the  dictum 
in  PinneVs  Case,  supra,  as  good  law. 

For  instance,  in  Sibree  v.  Tripp,  sup, -a,  Mr.  Baron  Parke  says, 
"  It  is  clear  if  the  claim  be  a  liquidated  and  ascertained  sum,  pay- 
ment of  part  cannot  be  satisfaction  of  the  whole,  although  it 
may  under  certain  circumstances  be  evidence  of  a  gift  of  the 
remainder."  And  Mr.  Baron  Alderson,  in  the  same  case,  says, 
"  It  is  undoubtedly  true  that  payment  of  a  portion  of  a  liquidated 


ACCORD    AND    SATISFACTION.  379 

No.  2.  —  Foakes  v.  Beer. 

■demand  in  the  same  manner  as  the  whole  liquidated  demand  which 
ought  to  be  paid  is  payment  only  in  part,  because  it  is  uot  one 
bargain  but  two,  —  namely,  payment  of  part,  and  an  agreement 
without  consideration  to  give  up  the  residue.  The  courts  might 
very  well  have  held  the  contrary  and  have  left  the  matter  to  the 
■agreement  of  the  parties,  but  undoubtedly  the  law  is  so  settled." 
After  such  strong  expressions  of  opinion,  I  doubt  much  whether 
any  Judge  sitting  in  a  court  of  first  instance  would  be  justified  in 
treating  the  question  as  open.  But  as  this  has  very  seldom,  if  at 
all,  been  the  ground  of  the  decision  even  in  a  court  of  first  in- 
stance, and  certainly  never  been  the  ground  of  a  decision  in  the 
Court  of  Exchequer  Chamber,  still  less  in  this  House,  1  did  think 
it  open  in  your  Lordships'  House  to  reconsider  this  question. 
And,  notwithstanding  the  very  high  authority  of  Lord  Coke,  1 
think  it  is  not  the  fact  that  to  accept  prompt  payment  of  a  part 
only  of  a  liquidated  demand  can  never  be  more  beneficial  than 
to  insist  on  payment  of  the  whole.  And  if  it  be  not  the  fact,  it 
cannot  be  apparent  to  the  Judges. 

1  will  first  examine  the  authorities.  If  a  defendant  pleaded 
the  general  issue,  the  plaintiff  could  join  issue  at  once,  and,  if  the 
case  was  not  defended,  get  his  verdict  at  the  next  assizes.  But  by 
pleading  a  special  plea  the  plaintiff  was  obliged  to  reply;  and  the 
defendant  often  caused  the  plaintiff,  merely  by  the  delay  occa- 
sioned by  replying,  to  lose  an  assize.  If  the  replication  was  one 
to  which  he  could  demur,  he  made  this  sure.  Strangely  enough, 
it  seems  long  to  have  been  thought  that  if  the  defendant  kept 
"within  reasonable  bounds,  neither  he  nor  his  lawyers  were  to  blame 
in  getting  time  in  this  way  by  a  sham  plea  that  a  chattel  was 
given  and  accepted  in  satisfaction  of  the  debt.  The  recognised 
forms  were  giving  and  accepting  in  satisfaction  a  beaver  hat, 
■{Youny  v.  Rudd,  5  Mod.  86),  or  a  pipe  of  wine,  3  Chit.  Plead.  (7th 
ed.)  92.  All  this  is  now  antiquated.  But  whilst  it  continued  to 
be  the  practice,  the  pleas  founded  on  the  first  part  of  the  resolu- 
tion in  Pinnel's  ('use,  supra,  were  very  common;  and  that  law  was 
perfectly  trite.  No  one  for  a  moment  supposed  that  a  beaver  hat 
was  really  given  and  accepted  ;  but  every  one  knew  that  the  law  was 
that  if  it  was  really  given  and  accepted,  it  was  a  good  satisfaction. 

But  special  pleas  founded  on  the  other  resolution  in  J'iniiiTs 
Case,  supra,  on  what  I  have  ventured  to  call  the  dictum,  were 
certainly  not  common.      I  doubt  if  a  real  defence  of  this  sort  was 


380  ACCORD    AND    SATISFACTION. 

No.  2.  —  Foakes  v.  Beer. 

ever  specially  pleaded.  When  there  really  was  a  question  as  to 
whether  a  debt  was  satisfied  by  a  payment  of  a  smaller  sum,  the 
defendant  pleaded  the  general  issue  ;  and  if  it  was  proved  to  the 
satisfaction  of  the  jury  that  a  smaller  sum  had  been  paid  and 
accepted  in  satisfaction  of  a  greater,  if  objection  was  raised,  the 
jury  might  perhaps, as  suggested  by  Mr.  Justice  Holroyd  in  Thomas 
v.  Heat/torn,  supra,  find  that  the  circumstances  were  such  that  the 
legal  effect  was  to  be  as  if  the  whole  was  paid  clown  and  a  portion 
thrown  back  as  a  God's-penny.  This,  however,  seems  to  me  to  be 
an  unsatisfactory  and  artificial  way  of  avoiding  the  effect  of  the 
dictum,  and  it  could  not  be  applied  to  such  an  agreement  as  that 
now  before  this  House. 

For  whatever  reason  it  was,  I  know  of  no  case  in  which  the 
question  was  raised  whether  a  payment  of  a  lesser  sum  could  be 
satisfaction  of  a  liquidated  demand,  from  Pinnel's  Case,  supra,  down 
to  Cumber  v.  Wane,  supra, — a  period  of  115  years. 

In  Adams  v.  Tapling,  supra,  where  the  plea  was  bad  for  many 
other  reasons,  it  is  reported  to  have  been  said  by  the  court  that, 
"  in  covenant  where  the  damages  are  uncertain,  and  to  be  recov- 
ered, as  in  this  case,  a  lesser  thing  maybe  done  in  satisfaction; 
and  there  accord  and  satisfaction  is  a  good  plea."  No  doubt  this 
was  one  of  the  cases  which  Mr.  Baron  Parke  would  have  cited  in 
support  of  his  opinion  that  Down  v.  Hatcher,  supra,  was  not  good 
law.  The  court  are  said  to  have  gone  on  to  recognise  the  dictum 
in  Pinners  Case,  supra,  or  at  least  not  to  dissent  from  it;  but  it 
was  not  the  ground  of  their  decision.  In  every  other  reported 
case  which  I  have  seen  the  question  arose  on  a  demurrer  to  a 
replication  to  what  was  obviously  a  sham  or  dilatory  plea. 

Some  doubt  has  been  made  as  to  what  the  pleadings  in  Cumber 
v.  Wane,  supra,  really  were.  I  have  obtained  the  record.  The 
plea  is  that  after  the  promises  aforesaid,  and  before  the  issuing  of 
the  writ,  it  was  agreed  between  the  said  George  and  Edward 
Cumber  that  he,  the  said  George,  "  da  ret  eidem  Edwardo  Cumber 
quandam  notam  in  script,  vocatam  'a  promissory  note,'  manu  pro- 
pria ipsius  Georgii  subscript,  pr.  solucbn  eidem  Edwardo  Cumber  ret 
ordini  quinque  libra  rum,"  fourteen  days  after  date,  in  full  satisfac- 
tion and  exoneration  of  the  premises  and  promises,  which  said  note 
in  writing  the  said  George  then  gave  to  the  said  Edward  Cumber; 
and  the  said  Edward  Cumber  then  and  there  received  from  the 
said  George  the  said  note  in  full  satisfaction  and  discharge  of  the 
premises  and  promises. 


A.CC0U1J    ANH    SATISFACTION.  3S1 

No.  2.  —  Foakes  v.  Beer. 

The  replication  is  that  "the  said  George  did  not  give  to  him, 
Edward,  any  note  in  writing  called  a  promissory  note  with  the 
hand  of  him,  George,  subscribed  for  the  payment  to  him,  Edward, 

or  his  order,  £5,  fourteen  days  after  date,  in  full  satisfaction  and 
discharge  of  the  premises  and  promises."  To  this  there  is  a  demur- 
rer and  judgment  in  the  Common  Pleas  for  the  plaintiff  "  that  the 
replication  was  good  in  law." 

The  reporter,  oddly  enough,  says  there  was  an  immaterial  repli- 
cation. The  effect  of  the  replication  is  to  put  in  issue  the  sub- 
stance of  the  defence,  — namely,  the  giving  in  satisfaction  (  Youny 
v.  Rudd,  swpra)\  and  certainly  that  was  not  immaterial.  But  for 
some  reason — I  do  not  stop  to  inquire  what  —  Chief  Justice 
Pratt  prefers  to  base  the  judgment,  affirming  that  of  the  Common 
Pleas,  on  the  supposed  badness  of  the  plea  rather  than  on  the 
sufficiency  of  the  replication.  It  is  impossible  to  doubt  that  the 
note,  which  it  is  averred  in  the  plea  was  given  as  satisfaction,  was 
a  negotiable  note.  And  therefore  this  case  is  in  direct  conflict 
with  Sibree  v.  Trip}),  supra. 

Two  cases  require  to  be  carefully  considered.  The  first  is  Heath- 
cote  v.  Crookshanks,  supra.  The  plea  there  pleaded  would,  I  think, 
now  be  held  perfectly  good, —  see  Norman  v.  Thompson,  4  Exch. 
Rep.  755;  19  Law  J.  Rep.  Exch.  193;  but  Mr.  Justice  Puller 
seems  to  have  thought  otherwise.  He  says,  "  Thirdly,  it  was  said 
that  all  the  creditors  were  bound  by  this  agreement  to  forbear;  but 
that  is  not  stated  by  the  plea.  It  is  only  alleged  that  they  agreed 
to  take  a  certain  proportion ;  but  that  is  a  nudum  pactum,  unless 
they  had  afterwards  accepted  it.  In  the  case  in  which  Cumber 
v.  Wane,  supra,  was  denied  to  be  law,  —  Hani  castle  v.  Howard, — 
the  party  actually  accepted.  But  as  the  plaintiff  in  the  present 
case  refused  to  take  less  than  the  whole  demand,  the  plea  is  clearly 
bad.'' 

That  decision  goes  entirely  on  the  ground  that  accord  without 
satisfaction  is  not  a  plea.  I  do  not  think  it  can  fairly  lie  said  that 
Mr.  Justice  Buller  meant,  by  saying  "that  is  a  malum  pactum. 
unless  they  had  afterwards  accepted  it,"  to  express  an  opinion  that 
if  the  dividend  had  been  accepted,  it  would  have  been  a  good 
satisfaction.  But  he  certainly  expresses  no  opinion  the  other 
way. 

In  Fitch  v.  Sutton,  5  East,  230,  not  only  did  the  plaintiff  not 
accept  the  payment  of  the  dividend  in  satisfaction,  but  he  refused 


382  ACCORD    AND    SATISFACTION. 

No.  2.  —  Foakes  v.  Beer. 

to  accept  it  at  all  unless  the  defendant  promised  to  pay  him  the 
balance  when  of  ability,  and  the  defendant  assented  and  made  the 
promise  required ;  so  that  but  for  the  fact  that  other  creditors- 
were  parties  to  the  composition,  there  could  have  been  no  defence. 
There  was  no  point  of  pleading  in  that  case,  the  whole  being  open 
under  the  general  issue.  And  in  Steinman  v.  Magnus,  11  East,  390,  it 
was  pretty  well  admitted  by  Lord  Ellexborough  that  the  decision 
in  Fitch  v.  Sutton,  supra,  would  have  been  the  other  way  if  they 
had  understood  the  evidence  as  the  reporter  did.  But  though 
the  misapprehension  of  the  Judges  as  to  the  facts,  and  the  absence 
of  any  acceptance  of  the  dividend,  greatly  weaken  the  weight  of 
Fitch  v.  Sutton,  supra,  still  it  remains  that  Lord  Ellenborough  — 
a  very  great  Judge  indeed  —  did,  however  hasty  or  unnecessary  it 
may  have  been  to  express  such  an  opinion,  say,  "  It  is  impossible 
to  contend  that  acceptance  of  £17  10s.  is  an  extinguishment  of 
a  debt  of  £50.  There  must  be  some  consideration  for  the  relin- 
quishment of  the  residue,  —  something  collateral  to  show  a  possi- 
bility of  benefit  to  the  party  relinquishing  his  further  claim, — 
otherwise  the  agreement  is  nudum  pactum.  But  the  mere  promise 
to  pay  the  rest  when  of  ability  put  the  plaintiff  in  no  better  con- 
dition than  he  was  before.  It  was  expressly  determined  in  Cumber 
v.  Wane,  supra,  that  acceptance  of  a  security  for  a  lesser  sum  can- 
not be  pleaded  in  satisfaction  of  a  similar  security  for  a  greater. 
And  though  that  case  was  said  by  me  in  argument  in  Heathcote 
v.  Crookshanks,  supra,  to  have  been  denied  to  be  law,  and  in  con- 
firmation of  that  Mr.  Justice  Buller  afterwards  referred  to  a  case 
(stated  to  be  that  of  Hardcastle  v.  Howard,  Hilary  Term,  26- 
Geo.  III.),  yet  I  cannot  find  any  case  of  that  sort,  and  none  has 
been  now  referred  to  ;  on  the  contrary,  the  decision  in  Cumber  v. 
Wane,  supra,  is  directly  supported  by  the  authority  of  Pirmel'& 
Case,  supra,  which  never  appears  to  have  been  questioned." 

I  must  observe  that,  whether  Cumber  v.  Wane,  supra,  was  or 
was  not  denied  to  be  law  in  Hardcastle  v.  Howard,  it  certainly 
was  denied  to  be  law  in  Sibree  v.  Tripp,  supra  ;  and  that,  though. 
it  is  quite  true  that  FinneVs  Case,  supra,  as  far  as  regards  the 
points  actually  raised  in  the  case,  has  not  only  never  been  ques- 
tioned, but  is  often  assented  to,  I  am  not  aware  that  in  any  case 
before  Fitch  v.  Sutton,  supra,  unless  it  be  Cumber  v.  Wane,  suprar 
has  that  part  of  it  which  I  venture  to  call  the  dictum  ever  been 
acted  upon  ;  and,  as  I  have  pointed  out,  had  it  not  been  for  the 


ACCORD    AND    SATISFACTION.  383 

No.  2.       Foakes  v.  Beer. 

composition  with  other  creditors,  there  could  have  been  no  defence 
in  Fitch  v.  Sutton,  supra,  whether  the  dictum  in  Pinners  Case, 
supra,  was  right  or  wrong. 

Still,  this  is  an  authority,  and  T  have  no  doubt  that  it  was  on  the 
ground  of  this  authority,  and  the  adhesion  of  Mr.  Justice  Bayley 
to  it  in  Thomas  v.  Heatlurrn,  supra,  that  Barons  PARKE  and 
Alderson  expressed  themselves  as  they  did  in  the  passages  I 
have  cited  from  Sibree  v.  Tripp,  supra  ;  and  I  think  that  their 
expressions  justify  Mr.  John  William  Smith  in  laying  it  down 
as  he  does  in  his  note  to  Cumber  v.  Wane,  supra,  in  the  second 
edition  of  his  Leading  Cases,  that  "a  liquidated  and  undisputed 
money  demand,  of  which  the  day  of  payment  is  past  (not  founded 
upon  a  bill  of  exchange  or  promissory  note),  cannot  even  with 
the  consent  of  the  creditor  be  discharged  by  mere  payment  by  the 
debtor  of  a  smaller  amount  of  money  in  the  same  manner  as  he 
was  bound  to  pay  the  whole."  I  am  inclined  to  think  that  this 
was  settled  in  a  court  of  first  instance.  I  think,  however,  that  it 
was  originally  a  mistake. 

What  principally  weighs  with  me  in  thinking  that  Lord  COKE 
made  a  mistake  of  fact  is  my  conviction  that  all  men  of  business, 
whether  merchants  or  tradesmen,  do  every  day  recognise  and  act 
on  the  ground  that  prompt  payment  of  a  part  of  their  demand  may 
be  more  beneficial  to  them  than  it  would  be  to  insist  on  their 
rights  and  enforce  payment  of  the  whole.  Even  where  the  debtor 
is  perfectly  solvent,  and  sure  to  pay  at  last,  this  often  is  s<>. 
Where  the  credit  of  the  debtor  is  doubtful,  it  must  be  more  so. 
1  had  persuaded  myself  that  there  was  no  such  long-continued 
action  on  this  dictum  as  to  render  it  improper  in  this  House  to 
reconsider  the  question.  I  had  written  my  reasons  for  so  think- 
ing; but  as  they  were  not  satisfactory  to  the  other  noble  and 
learned  Lords  who  heard  the  case,  1  do  nut  now  repeat  them  nor 
persist  in  them. 

I  assent  to  the  judgment  proposed,  though  it  is  not  that  which  I 
had  originally  thought  proper. 

Lord  Watson.  I  am  of  opinion  that  the  judgment  of  the  Court 
of  Appeal  ought  to  be  affirmed. 

I  regret  that  I  have  been  unable  to  adopt  that  construction  of 
the  memorandum  of  agreement  which  has  commended  itself  to 
your  Lordships  who  have  already  spoken,  as  well  as  to  the  Judges 
of    the    Court   of  Appeal.      It   humbly  appears   to   me    that   the 


384  ACCORD    AND    SATISFACTION. 

No.  2.  —  Foakes  v.  Beer. 

respondent  did  not  intend  to  pass,  and  did  not  pass  from  her  legal 
claim  for  interest  on  the  judgment  debt  due  to  her  by  the  appellant. 
She  undertakes  not  to  take  proceedings  on  the  judgment,  provided 
the  stipulated  termly  instalments  are  regularly  paid,  "  until  the 
whole  of  the  said  sum  of  £2090  19s.  shall  have  been  fully  paid  and 
satisfied."  But  these  words,  "the  said  sum,"  ought,  in  my  opinion, 
to  be  construed  as  referring  to  the  sum  of  £2090  19s.  previously 
described  as  being  contained  in  a  judgment  of  Her  Majesty's  High 
Court  of  Justice,  and  therefore  bearing  interest  ex  lege.  The  whole 
context  of  the  memorandum  appears  to  me  to  be  consistent  with 
this  view,  and  to  point  strongly  to  the  inference  that  there  was  no 
agreement,  or  even  proposal,  that  the  respondent  should  make  any 
abatement  of  her  legal  claims,  or  do  more  than  give  her  debtor 
time  on  the  conditions  expressed,  "  to  pay  such  judgment." 

I  must  assume,  however,  that  I  have  wrongly  construed  the 
memorandum  of  agreement,  and  that  its  language"  imports  that  the 
respondent  was  to  abstain  from  taking  proceedings  upon  the  judg- 
ment, if  and  when  instalments  to  the  amount  of  £2090  19s.  had 
been  duly  and  regularly  paid.  Upon  that  assumption  I  am  still 
of  opinion  that  the  respondent  ought  to  prevail,  on  the  simple 
ground  that,  in  that  view  of  the  memorandum,  her  agreement  to 
abate  part  of  her  claim  was  nudum  pactum,  for  which  the  appel- 
lant gave  no  legal  consideration. 

I  do  not  think  it  necessary  to  consider  whether  it  would  still  be 
open  to  this  House,  if  so  advised,  to  overrule  the  doctrine  of 
Cumber  v.  Wane,  supra,  and  Pinners  Case,  supra,  because  I  am 
not  prepared  to  disturb  that  doctrine.  Nor  do  I  think  it  necessary 
to  occupy  the  time  of  the  House  with  a  detailed  explanation  of  the 
considerations  which  have  led  me  to  that  result,  seeing  that  I  con- 
cur in  the  judgment  of  the  LORD  CHANCELLOR  and  of  my  noble 
and  learned  friend  opposite. 

Lord  FitzGerald.  The  first  question  is  as  to  the  true  construc- 
tion of  the  memorandum  of  agreement  of  the  21st  of  December, 
1 S 7 6 ,  and  I  express  my  opinion  on  it  with  the  greatest  diffidence. 
My  excuse  for  expressing  any  opinion  upon  it  is  that  1  feel  rather 
strongly  on  the  point.  The  memorandum  is,  it  may  be  observed, 
unilateral ;   for  Dr.  Foakes  by  it  assumes  no  obligation. 

The  first  recital  is  that  Mrs.  Beer  had  obtained  a  judgment 
against  Dr.  Foakes  for  a  sum  of  £2090  19s.  The  judgment  would 
not  per  se,  at  common   law,  entitle  the   plaintiff  to  interest  ;  but 


ACCORD   AND   SATISFACTION.  385 

No.  2.  —  Foakes  v.  Beer. 

the  statute  of  1  &  2  Vict.  c.  110,  §  17,  provides  "  that  every  judg- 
ment debt  shall  carry  interest  at  the  rate  of  four  pounds  per 
centum  per  annum  from  the  time  of  entering  up  the  judgment  .  .  . 
until  the  same  shall  be  satisfied,  and  such  interest  may  be  levied 
under  a  writ  of  execution   on  such  judgment." 

This  right  to  interest  is  different  from  interest  arising  on  con- 
tract, or  which  a  jury  may  give  as  damages  or  may  withhold.  It 
is  a  clear  statutory  right,  arising  immediately  on  entering 'up  the 
judgment,  and  continuing  until  the  judgment  debt  is  fully  paid. 
The  position  of  the  parties  at  the  date  of  the  agreement,  then,  was 
that  Dr.  Foakes  owed  Mrs.  Beer  the  principal  sum  of  £2090  19s., 
recovered  by  a  judgment  which  carried  interest  at  four  per  cent., 
arising  de  die  in  diem  as  a  statutory  right,  and  then  (that  is,  at 
the  time  of  the  agreement)  amounted  to  £113  16s.  2d. 

The  agreement  then  contains  this  recital :  "  And  whereas  the 
said  J.  W.  Foakes  has  requested  the  said  Julia  Beer  to  give  him 
time  in  which  to  pay  such  judgment,  which  she  has  agreed  to  do 
on  the  following  conditions."  He  does  not  ask  for  any  remission 
of  any  portion  of  his  obligation  ;  he  solicits  only  time  for  pay- 
ment, and  she  agrees  to  give  him  that  time  and  no  more. 

It  seems  to  me  clear  and  free  from  doubt  that  "such  judgment" 
in  this  recital  would,  if  there  was  no  more  to  guide  us,  mean  the 
judgment  debt  with  its  statutable  interest  at  four  per  cent.  The 
language  of  the  recital  and  of  the  whole  agreement  seems  to 
be  that  of  Mr.  Smith,  the  defendant's  solicitor,  as  we  find  in 
Mackreth's  evidence  this  statement:  "The  agreement  was  pre- 
pared by  Smith  and  sent  to  me,  and  I  approved  of  it  on  behalf  of 
Mrs.  Beer." 

Returning  to  the  language  of  the  agreement,  it  is  remarkable 
that  Dr.  Foakes  undertakes  by  it  no  obligation  whatever ;  he  does 
not  bind  himself  to  pay  any  instalment  to  her  or  to  her  "nominee," 
and  it  was  not  necessary  that  he  should;  fur  I  can  entertain  no 
doubt  that  if  what  is  called  the  "condition"  for  payment  of  the 
instalments  had  not  been  fulfilled,  then  Mrs.  Beer  could  have 
enforced  the  whole  residue  of  her  demand  for  principal  and  the 
interest  that  accrued,  by  execution  on  the  judgment.  Dr.  Foakes 
enters  into  no  obligation  to  pay  to  her  "  nominee  ;  "  and  this 
seems  to  displace,  in  fact,  the  foundation  of  the  judgment  of 
the  Divisional  Court,  where  Mr.  Justice  Williams  is  reported 
to  have  said,  "The  doctrine  is  that  an  agreement  to  pay  a  less 
vol.  i.  —  25 


386  ACCORD    AND   SATISFACTION. 

No.  2.  —  Foakes  v.  Beer. 

sum  in  satisfaction  of  a  debt  is  without  consideration.  The 
English  law  forbids  such  an  agreement.  That  is  the  law  in  its 
naked  simplicity.  But  I  think  a  very  little  departure  from  the 
mere  agreement  to  pay  a  less  sum  will  make  the  agreement  good. 
If  the  creditor  says,  '  You  owe  me  a  large  sum  of  money ;  I  am 
willing  to  accede  to  your  request  for  time,  but  you  must  enter 
into  an  agreement  in  writing,  at  your  expense  (as  it  would  be), 
and  you  shall  pay  the  money  to  me  or  to  any  person  I  may  name 
at  my  election.'  That,  I  think,  is  enough  to  make  this  agreement 
not  a  nudum,  'pactum."  There  is  no  such  thing  in  the  agreement 
here.  And  Air.  Justice  Matiiew  adds,  "It  is  noticeable  that  the 
agreement  is  framed  so  that  it  casts  an  obligation  which  would 
not  otherwise  have  existed.  The  agreement  to  pay  the  creditor's 
nominee  renders  it  a  document  available  as  a  security."  It  would 
seem,  to  me,  at  least,  that  the  terms  of  the  agreement  had  never 
been  properly  conveyed  to  the  minds  of  the  Judges  ;  for,  in  fact. 
Dr.  Foakes  assumed  no  greater  obligation  than  the  law  imposed 
on  him  in  respect  of  the  judgment. 

The  expressed  consideration  is  the  payment  to  Airs.  Beer  "  of  the 
sum  of  £500  in  part  satisfaction  of  the  said  judgment  debt  of 
£2090  19s. ;"  and  again,  I  should  repeat  here  that  the  last  words 
would  mean  the  debt,  and  the  right  to  interest  which  it  carried,  if 
there  is  nothing  subsequent  to  impose  a  different  meaning.  The 
term  "satisfaction"  is  specially  applicable  to  a  judgment.  You 
could  not  in  former  times  plead  payment  simply  to  a  scire  facias 
on  a  judgment.  The  plea  should  show  satisfaction.  The  judgment 
would  not  be  satisfied  on  payment  of  the  £2090  19s.,  but  only  by 
payment  of  that  sum  and  the  interest.  The  agreement  then  pro- 
vides, as  a  condition,  for  the  payment  of  the  instalments  of  £150 
"until  the  whole  of  the  said  sum  of  £2090  19s.  shall  have  been 
fully  paid  and  satisfied."  The  whole  difficulty  arises  on  this  pas- 
sage. If  in  place  of  using  the  word  "sum"  it  had  used  "judg- 
ment" or  "judgment  debt,"  in  my  opinion  there  could  have  been 
but  one  construction,  —  namely,  that  "judgment"  or  "judgment 
debt"  meant  the  principal  sum  of  £2090  19s.,  with  "interest  at 
four  per  cent."  Now,  having  regard  to  what  the  parties  were  at, 
why  should  we  not  read  "the  said  sum  of  £2090  19s."  by  the 
light  of  the  antecedent  parts  of  the  same  agreement  as  meaning 
"the  said  judgment  for  £2090  19s.,"  and  thus  do  full  and  complete 
justice,  and  not  deprive  Mrs.  Beer  of  about  £350  as  justly  due  to 


ACCORD    AND   SATISFACTION.  387 

No.  2.  —  Foakes  v.  Beer. 

her  as  the  £2090  19s.,  and  which,  it  is  to  ine  manifest,  she  never 
intended  and  was  never  asked  to  relinquish  I  There  is  a  special 
recital  indicating  what  the  parties  intended, —  namely,  "time  on 
certain  conditions,"  —  but  without  a  word  as  to  relinquishing  any 
part  of  the  plaintiffs  demand;  and  if  the  subsequent  words  are 
more  general,  we  should  limit  and  qualify  them  by  the  special  lan- 
guage of  the  recital. 

Dr.  Foakes  did  not  ask  for  any  remission :  he  asked  for  time,  and 
for  time  alone  ;  and  we  ought  to  assume  that  when  his  solicitor  pre- 
pared and  furnished  the  memorandum  of  agreement  he  did  not 
intend  by  its  language  that  any  part  of  Mrs.  Beer's  demand  was  t<> 
be  released.  Mackreth  says  that  in  the  course  of  the  negotiation 
"interest  was  never  mentioned  at  all  in  reference  to  that  agree- 
ment." She  adopted  the  language  of  the  memorandum,  and  it 
became  hers  ;  but  was  it  such  as  to  lead  Dr.  Foakes  to  understand 
that  Mrs.  Beer  agreed,  on  performance  of  the  condition,  to  give  up 
her  claim  to  interest? 

I  think  that  we  ought  not  to  adopt  such  a  conclusion. 

There  are  many  authorities  for  the  proposition  that  you  may 
limit  the  general  words  of  release  by  the  antecedent  recitals  so  as  to 
effectuate  that  alone  which  was  within  the  intention  of  the  parties. 
I  might  refer  to  a  number  of  cases, —  for  example,  Thorpe  v.  Thorpe,. 
1  Ld.  Ray  in.  235,  where  it  is  said  per  cur.:  "  Where  there  are  gen- 
eral words  only  in  a  release,  they  shall  be  taken  most  strongly 
against  the  releasor;  .  .  .  but  where  there  is  a  particular  recital, 
and  then  general  words  follow,  the  general  words  shall  be  qualified 
by  the.  special  words." 

Applying  that  rule  to  the  present  case,  you  may  limit  the  gen- 
eral words  at  the  conclusion  of  the  memorandum  to  the  giving  of 
time  alone  ;  that  is  to  say,  if  "judgment  debt  of  £2090  19s."  means 
the  sum  of  £2090  19s.  and  nothing  more,  then  that  Mrs.  Beer 
agrees  to  give  time  for  payment  of  the  principal  debt  of  £2090  19s. 
by  the  instalments,  and  at  the  times  indicated,  and  that,  pending 
that  arrangement,  she  "  would  not  take  any  proceedings  whatever 
on  the  said  judgment."  This  would  give  effect  to  every  word  and 
leave  the  "  interest "  untouched,  which,  if  the  principal  is  to  be 
paid  by  instalments,  could  not  well  be  ascertained  until  the  time 
had  been  reached  for  the  payment  of  the  last  instalment.  There 
is  nothing  in  the  memorandum,  it  should  be  observed,  to  prevent 
Dr.  Foakes  from  coming  in  at  any  time  and  discharging  the  whole 


388  ACCORD    AND    SATISFACTION. 

No.  2.  —  Foakes  v.  Beer. 

principal  before  the  instalments  became  payable.  Upon  the  con- 
struction of  the  memorandum,  1  am  of  opinion  that  the  decision  of 
the  Court  of  Appeal  should  be  affirmed. 

The  second  question  now  presents  itself;  but  with  my  view  on 
the  first  it  is  not  actually  necessary  for  me  to  express  any  opinion 
on  it,  but  it  seems  more  satisfactory  that  I  should  do  so.  Assum- 
ing that  I  have  fallen  into  error  in  interpreting  the  agreement,  and 
that  it  is  to  be  read  that  if  Dr.  Foakes  should  pay  the  actual  sum 
of  £2090  19s.  by  instalments  according  to  the  condition,  she  would 
relinquish  her  statutable  claim  for  interest  and  not  issue  execution 
on  the  judgment  to  recover  it,  is  such  an  agreement  nudum  pac- 
tum, and  therefore  incapable  of  being  enforced? 

I  have  listened  with  much  interest,  and,  I  may  add,  with  no 
small  instruction,  to  the  judgment  of  my  noble  and  learned  friend 
Lord  Blackburn.  He  has  as  usual  gone  to  the  very  foundation, 
and  I  regret  that  I  have  been  unable  to  assist  him  in  overturning 
the  resolution  of  the  Court  of  Common  Pleas  as  reported  by  Lord 
Coke  in  Pinnel's  Case,  supra,  or  in  expunging  from  the  books  the 
infinitesimal  remains  of  Cumber  v.  Wane,  supra.  It  seems  to  me 
somewhat  doubtful  whether  the  question  arises  which  my  noble 
and  learned  friend  has  presented, —  namely,  whether  payment  of  a 
part  of  a  debt  ascertained  by  judgment  can  be  a  satisfaction  of  the 
whole.  In  the  case  before  us  the  whole  of  the  £2090  19s.,  the 
principal  of  the  judgment,  has  been  paid  to  the  last  farthing. 

The  interpretation  put  by  the  Judges  of  the  courts  below,  and 
adopted  by  the  Lord  Chancellor  and  my  noble  and  learned  friend 
Lord  BLACKBURN,  on  the  memorandum,  seems  to  me  to  divide  it,  in 
effect,  into  two  stipulations,  the  first  being  that,  if  Dr.  Foakes 
should  pay  down  £500  and  the  remainder  of  the  actual  sum  of 
£2090  19s.  in  the  manner  prescribed,  Mrs.  Beer  would  so  accept 
it,  and,  pending  the  payments,  would  take  no  proceeding  on  the 
judgment;  and  the  second  being  that  if  the  £2090  19s.  should  be 
paid  iir  the  manner  indicated,  she  would  relinquish  her  claim  for 
interest,  and  would  not  take  any  proceedings  whatever  on  the  judg- 
ment to  enforce  that  interest.  The  question  is,  whether  there  is 
any  sufficient  legal  consideration  for  the  relinquishment  of  the  debt 
for  interest.     I  am  clearly  of  opinion  that  there  is  not. 

My  noble  and  learned  friend  Lord  Blackburn  has  shown  us  very 
clearly  that  the  resolution  in  Pinnel's  Case,  supra,  was  not  necessary 
for  the  decision  of  that  case,  and  that  the  principle  on  which  it 


ACCORD   AND   SATISFACTION.  389 


No.  2.  —  Foakes  v.  Beer. 


seems  to  rest  does  not  appear  to  have  been  made  the  foundation  of 
any   subsequent  decision   of  the  Exchequer  Chamber   or  of    this 
House,  and,  further,  that  some  of  the  distinctions  which  have  been 
engrafted  on  it  make  the  rule  itself  absurd.      But  it  seems  to  me 
that  it  is  not  the  rule  which  is  absurd,  but  some  of  those  distinc- 
tions emanating  from  the  anxiety  of  Judges  to  limit  the  operation 
of  a   rule   which    they  considered  often  worked   injustice.      That 
resolution  in  PinneVs  Case,  supra,  has  never  been  overruled.   For  282 
years  it  seems  to  have  been  adopted  by  our  Judges.     During  that 
whole  period  it  seems  to  have  been  understood  and  taken  to  be 
part  of  our  law  that  the  payment  of  a  part  of  a  debt  then  due  and 
payable  cannot  alone  be  the  foundation  of  a  parol  satisfaction  and 
discharge  of  the  residue,  as  it  brings  no  advantage  to  the  creditor, 
and  there  is  no  consideration  moving  from  the  debtor,  who  has  done 
no  more  than  partially  to  perforin  his  obligation.     Though  it  may 
not  have  been  made  the  subject  of  actual  decision,  yet  we  find  that 
every  Judge  in  this  country  who  has  had  occasion  to  deal  with  the 
proposition  states  the  law  to  be  so.     And  in  the  sister  country  it 
has  always  been  so  received  ;  and  in  the  case  of  The  Corporation  of 
Drogheda  v.  Fairtlough,  8  Ir.  C.  L.  Rep.  98,  110,  114,  Chief  Justice 
Lefkoy  thus  expresses  himself.     (I  may  say  that  his  language  is 
entitled  to  very  considerable  weight ;  he  was  a  Judge  who  had  sat 
at  the  feet  of  Lord  Kenyon,  and  he  was  the  well-known  reporter  of 
the  decisions  of  Lord  Redesdale.)     That  very  learned  Judge  thus 
states  the  law  :  "  There  is  also  a  failure  of  evidence  of  consideration 
for  the  contract  to  remove  the  rule  of  the  common  law  that  pay- 
ment of  a  less  sum  cannot  be  a  satisfaction  of  a  greater  liquidated 
sum  unless  there  is  some  further  advantage  accompanying  the  pay- 
ment."    And  in  another  part  of  his  judgment  he  puts  the  proposi- 
tion  thus:    "The   payment    merely  of    a  less   sum,  not   being    in 
pursuance  of  any  contract  by  deed,  cannot  by  the  common  law  be 
deemed  to  be  a  satisfaction  of  a  greater  liquidated  sum;  but  the 
law  will  allow  the  payment  of  a  smaller  sum  to  be  a  satisfaction  of 
a  greater  liquidated  sum  if  there  be  any  collateral  advantage,  how- 
ever small,  to  the  creditor  attending  the  transaction."     The  ques- 
tion did  arise  directly  in  that  case,  but  the  plea  failed  in  other 
points,  and  it  was  therefore  not  necessary  actually  to  decide  it.     1 
refer  to  it  as  showing  how  a  Judge  of  great  experience  considered 
the  law  to  stand. 

I  am  not  aware  of  any  decision  that  controverts  this  position. 


390  ACCORD    AND   SATISFACTION. 

Nos.  1,  2.  —  Pinners  Case,  &,c.  —  Notes. 

and  the  text-books  uniformly  present  it  thus:  that  "the  payment 
of  part  of  a  liquidated  and  ascertained  sum  is  in  law  no  satisfaction 
of  the  whole."  The  proposition  itself  is  but  a  part  of  a  rule  of  our 
law  which  affects  and  governs  many  of  the  daily  relations  of  life, 
Nuda  pactio  obligationem  non  parit.  And  again  the  law  says  that 
nudum  pactum  est  uhi  nulla  subest  causa  prceter  conventionem. 

I  should  hesitate  before  coming  to  a  decision  which  might  be  a 
serious  inroad  on  that  rule,  but  I  concur  with  my  noble  and  learned 
friend  that  it  would  have  been  wiser  and  better  if  the  resolution  in 
J'iiinel's  Case,  supra,  had  never  been  come  to,  and  there  had  been  no 
occasion  for  the  long  list  of  decisions  supporting  composition  with 
a  creditor  on  the  rather  artificial  consideration  of  the  mutual  con- 
sent of  the  other  creditors.  We  find  the  law  t<>  have  been  accepted 
as  stated  for  a  great  length  of  time,  and  I  apprehend  that  it  is  not 
now  within  our  province  to  overturn  it. 

The  short  question  then  is  in  relation  to  a  judgment  debt  pay- 
able immediately,  and  on  which  the  creditor  is  entitled  to  have 
execution:  Is  the  payment  by  the  debtor  of  a  part  a  sufficient  con- 
sideration to  support  a  parol  agreement  by  the  judgment  creditor 
not  to  take  any  proceedings  whatever  on  the  judgment  for  the  resi- 
due ?  In  my  opinion  it  is  not;  and  1  think,  therefore,  that  the 
judgment  of  the  Court  of  Appeal  should  be  affirmed. 

Order   appealed  from    ajjirmed ;    and   appeal   dismissed  with 
costs. 

ENGLISH   NOTES. 

By  the  decision  in  Foakes  v.  Beer  it  appears  that  all  the  rules  in 
PlnneVs  Case  are  confirmed  as  existing  law  by  the  highest  authority. 
It  is  therefore  unnecessary  to  go  in  detail  through  the  intermediate  cases. 
It  is  sufficient  to  remark  that  it  has  been  clearly  established  on  the  au- 
thority of  Sibree  v.  Tripp  (1846),  15  M.  &  W.  23;  15  L.  J.  Exch.  318,  that 
a  negotiable  security  is  within  the  rule  of  a  horse.  &c,  under  the  3rd  para. 
cf  the  rule;  and  therefore  a  negotiable  security,  such  as  a  promissory 
note,  for  a  smaller  amount  may  be  given  and  accepted  in  satisfaction 
of  a  debt  of  greater  amount;  and  for  this  purpose  it  is  not  necessary 
that  the  note  should  be  paid  at  maturity.  This  was  followed  by  the 
Queen's  Bench  Division  in  Goddard  v.  O'Brien  (1882),  9  Q.  B.  D.  37, 
where  the  plaintiff  had  given  a  receipt  for  a  cheque  for  £100  in  settle- 
ment for  an  account  of  a  larger  sum  "  on  the  cheque  being  honoured.'" 
The  cheque  having  been  honoured,  there  was  held  to  be  a  good  accord 
and  satisfaction.  Both  these  cases  are  referred  to,  and  not  in  any  way 
impugned,  in  the  judgment  of  Lord  Selrorxe  in  Foakes  v.  Beer 
({>.  375,  suprt, 


ACCORD    AND    SATISFACTION.  391 

Nos.  1,  2.  —  Pinnel's  Case,  &-c.  —  Notes. 

The  accord  is  a  question  of  fact.  In  Day  v.  M'Lea  (G.  A.  1889), 
22  Q.  B.  1).  610;  58  L.  J.  G.  B.  293,  the  defendant,  against  whom  the 
plaintiff  had  an  unliquidated  claim,  had  sent  the  plaintiff  a  cheque  "  in 
full  of  all  demands,"  and  the  plaintiff  had  kept  the  cheque,  stating  that 
he  did  so  " on  account,"  and  asking  a  cheque  for  the  balance  of  his  claim. 
The  defendant  had  written  back  stating  that  the  payment  had  been  made 
in  full  of  all  demands,  and  asking  for  a  receipt  in  full.  ChAKLES,  J., 
who  tried  the  case,  held,  that  whether  there  was  or  was  not  an  accord 
was  a  question  of  fact;  and  he  drew  the  inference  that  there  was  not, 
and  gave  judgment  for  the  plaintiff.  The  Court  of  Appeal  affirmed 
this  judgment. 

AMERICAN   NOTES. 

1.  It  is  the  universal  rule  of  the  American  cases  that  a  parol  promise  to 
accept  a  smaller  sum,  or  payment  of  a  smaller  sum,  where  a  certain  amount 
is  due,  although  accepted  in  full,  is  no  satisfaction.  Harrison  v.  Close,  2 
Johnson  (New  York),  448;  •">  Am.  Dec.  445;  Twitchcll  v.  Shaw,  10  dishing 
(Mass.),  40;  57  Am.  Dec.  80;  Rose  v.  Hall.  26  Connecticut,  392;  08  Am. 
Dec.  402;  Weber  v.  Coach.  134  Massachusetts,  26;  4."i  Am.  Rep.  274  (release 
of  judgment) ;  Seymour  v.  Minturn,  17  Johnson  (New  York),  169  ;  8  Am.  Dec. 
38l  * ;  Bunge  v.  Koop,  48  New  York,  225  ;  8  Am.  Rep.  546  ;  Pearson  v.  Thomason, 
15  Alabama,  700;  50  Am.  Dec.  159  ;  Daniels  v.  Hatch,  1  Zabriskie  (Xew  Jersey), 
391  ;  47  Am.  Dec.  169;  Deland  v  Hiett,  27  California,  611  ;  87  Am.  Dec.  102; 
Bird  v.  Smith.  34  Maine.  63  ;  50  Am.  Dec.  035;  Martin  v.  Frantz,  127  Peun.  St. 
389;  14  Am.  St.  Rep.  859  ;  Oberndorfx.  Union  Bank,  31  Maryland.  120;  1  Am. 
Rep.  31.     See  note,  04  Am.  Dec.  138. 

2.  The  receipt  of  $100  and  a  cow  in  full  of  a  judgment  for  $200  discharges 
the  judgment.  (Citing  Pinnel's  Case);  Nealx.  Handle)/.  110  Illinois,  418;  56 
Am.  Rep.  784.  Same  principle,  Jones  v.  Bullitt.  2  Littell  (Kentucky),  49  ;  Savage 
v.  Everman,  70  Penn.  St.  315  ;  Bull  v.  Bull,  43  Connecticut,  455  ;  Strang  v. 
Holmes,  7  Cowen  (New  York),  224.  So  of  an  agreement  to  accept  a  smaller  sum 
if  the  debtor  would  pay  the  costs  of  a  pending  suit,  which  he  did.  Mitchell  v. 
Wheaton,  46  Connecticut,  315  ;  33  Am.  Rep.  24.  The  court  said  :  ';  We  have 
here  a  consideration  additional  to  the  payment  of  the  $150  by  the  defendant." 
"  The  costs  of  the  pending  suit  the  defendant  did  not  at  the  time  owe  the  plain- 
tiff, and  it  was  not  certain  that  he  ever  would.  That  would  depend  upon  the 
result  of  the  suit.  At  all  events,  the  plaintiffs  had  no  claim  against  him  for 
the  costs  of  the  suit  when  the  settlement  was  made,  and  this  brings  the  case 
within  the  doctrine  of  the  cases  referred  to."  So  where  a  house  and  lot  was 
accepted.  Savage  v.  Everman,  70  Penn.  St.  315;  10  Am.  Rep.  676.  So  where 
the  creditor  accepted  the  debtor's  note  for  half  a  book  account,  secured  by 
mortgage.  Jaffray  v.  Davis,  124  New  York,  164,  citing  both  the  principal 
cases.  The  court  say,  after  citing  Pinnel's  Case,  "  This  simple  question  "  (the 
simple  acceptance  of  a  less  sum)  "has  since  arisen  in  the  English  courts  and 
in  the  courts  of  this  country  in  almost  numberless  instances,  and  has  received 
the  same  solution,  notwithstanding  the  courts,  while  so  ruling,  have  rarely 
failed,  upon  any  recurrence  of  the  question,  to  criticise  and  condemn  its 


392  ACCORD    AND    SATISFACTION. 

Nos.  1,  2.  —  Piiniel's  Case,  &/C.  — Notes. 

reasonable  justice,  fairness,  or  honesty.  No  respectable  authority  that  I 
have  been  able  to  find,  has,  after  such  unanimous  disapproval  by  all  the 
courts,  held  otherwise  than  was  held  in  PinnePs  Case,"  &c.  "  But  .  .  .  they 
have  seemed  to  seize  with  avidity  upon  any  consideration  to  support  the 
agreement  to  accept  the  lesser  sum  in  satisfaction  of  the  larger,"  &c.  This 
case  gives  a  very  learned  review  of  the  authorities.  So  of  the  acceptance  of 
the  debtor's  own  note  for  a  less  sum,  on  account  of  "the  increased  facilities 
of  recovering  upon  it,  the  presumption  of  a  consideration  for  it,  the  ease  of 
disposing  of  it  in  the  market,"  &c.  Mechanics''  Bank  v.  Huston  (Penn.)  11 
Weekly  Notes  of  Cases,  389. 

3.  Payment  of  smaller  sums  before  maturity,  or  payment  at  a  different 
place  from  that  appointed,  works  satisfaction.  The  reason  assigned  is  that 
the  general  rule  "is  entirely  technical  and  not  very  well  supported  by  reasons," 
"and  it  requires  but  very  slight  consideration  to  support  such  contracts." 
Jones  v.  Perkins,  29  Mississippi,  139;  64  Am.  Dec.  136;  Jones  v.  Bullitt,  2 
Littell  (Kentucky),  49;  Smith  v.  Brown,  3  Hawks  (No.  Carolina),  580;  Fen- 
wick  v.  Phillips,  3  Metcalfe  (Ky.),  87  ;  Rising  v.  Patterson,  5  Wharton  (Penn.). 
316  ;  McKenzie  v.  Culbreth,  66  North  Carolina,  534  ;  Eve  v.  Mosely,  2  Strobhart 
Law  (So.  Carolina),  203  ;  Bowker  v.  Childs,  3  Allen  (Mass.),  134  ;  Brooks  v. 
White,  2  Metcalf  (Mass.),  283 ;  37  Am.  Dec.  95. 

But  mere  tender  of  a  smaller  sum  a  little  before  the  whole  is  due  is  no  sat- 
isfaction.    Heam  v.  Kiehl,  38  Penn.  St.  147  ;  80  Am.  Dec.  472. 

Acceptance  of  a  smaller  sum  than  the  claim  in  suit,  and  execution  of  a 
receipt  in  full  of  claim  and  costs  satisfies  the  claim.  Gales  v.  Steele,  58  Con- 
necticut, 316 ;  18  Am.  St.  Rep.  268. 

The  acceptance  of  a  new  note  for  a  smaller  amount,  and  the  simultaneous 
surrender  of  the  old  note,  has  the  effect  of  a  release.  Draper  v.  Ilitt,  43  Vermont, 
439  ;  5  Am.  Rep.  292.  So  of  the  acceptance  of  the  debtor's  note  for  a  smaller 
amount  in  the  first  instance.  Ellsworth  v.  Fogg,  35  Vermont,  355  ;  Kent  v.  Reti- 
noids, 8  Hun  (New  York  Sup.  Ct.),  559 ;  Mechanics'  Bank  v.  Huston  (Penn.) 
1 1  AVeekly  Notes  of  Cases,  389. 

A  creditor's  acceptance  of  a  smaller  sum  in  satisfaction  of  the  debt,  accom- 
panied by  the  execution  of  a  formal  and  absolute  release,  under  seal,  is  valid 
and  irrevocable.     Gordon  v.  Moore,  44  Arkansas,  349;  51  Am.  Rep.  606. 

A  composition  agreement  in  writing  is  binding,  whether  under  seal  or  not, 
the  consideration  being  the  mutual  promises.  Millikcn  v.  Brown,  1  Rawle 
(Penn),  391 ;  Pierce  v.  Jones,  8  South  Carolina,  273  ;  28  Am.  Rep.  288,  citing 
Good  v.  Cheesman,  2  B.  &  Ad.  328  ;  Russell  v.  Rogers,  10  Wendell  (New  York), 
473  ;  25  Am.  Dec.  574 ;    White  v.  Kunlz,  107  New  York,  518 ;  1  Am.  St.  Rep.  886. 

But  the  promise  of  the  other  creditors  must  exist,  and  an  oral  promise  to 
accept  a  smaller  sum,  provided  no  other  shall  receive  a  larger  rate,  is  void. 
Perkins  v.  Lockwood,  100  Massachusetts,  249  ;  1  Am.  Rep.  103.  But  such  oral 
promise  is  binding  if  the  others  have  signed  the  agreement.  Mellen  v.  Gold- 
smith, 47  Wisconsin,  573 ;  32  Am.  Rep.  781. 

Plaintiff  had  an  account  of  above  $800  against  the  defendant,  and  with  the 
intention  of  making  a  gift  thereof,  received  from  him  one  dollar,  and  balanced 
the  account  by  the  entry,  "  Gift  to  balance  accounts,"  and  gave  him  a  receipt 
in  full  Held,  a  satisfaction.  Gray  v.  Barton,  55  New  York,  68;  1-1  Am.  Rep. 
181,  followed  in  Ferry  v.  Stephens,  66  New  York,  321. 


ACCORD    AND    SATISFACTION.  39( 


No.  3.  —  Bidder  v.  Bridges.  —  Rule. 


No.   3. —BIDDER  v.   BRIDGES. 

(c.  a.   1887.) 

RULE. 

The  obligation  of  a  third  person  for  a  smaller  amount  may 
be  given  by  the  debtor  and  accepted  by  the  creditors  in  sat- 
isfaction of  a  debt  due  by  the  debtor  of  larger  amount. 

Bidder  v.  Bridges. 

37  Ch.  D.  406  (s.  c.  57  L.  J.  Cli   300). 

The  points  decided  by  Mr.  Justice  Stirling  and  by  the  Court 
of  Appeal  in  this  case,  so  far  as  relates  to  the  above  rule,  appear 
from  the  following  judgments:  — 

Mr.  Justice  Stirling.  ...  A.  accepted  in  full  satisfaction  of 
B.'s  liability  for  costs,  the  cheque  of  B.'s  solicitors,  payable  to 
order,  and  that  cheque  was  duly  honoured.  What  in  law  is  the 
effect  of  that?  The  state  of  the  law  is  very  peculiar  in  regard  to 
the  acceptance  of  a  smaller  sum  in  satisfaction  of  a  larger  debt. 
The  law  has  been  recently  discussed  in  the  case  of  Foakes  v.  Beer, 
9  App.  Cas.  605  ;  54  L.  J.  Q.  B.  130,  ante  p.  370,  the  head-note  of 
which  states  that  "an  agreement  between  judgment  debtor  and 
creditor,  that  in  consideration  of  the  debtor  paying  down  part  of 
the  judgment  debt  and  costs  and  on  condition  of  his  paying  to 
the  creditor  or  his  nominee  the  residue  by  instalments  the  creditor 
will  not  take  any  proceedings  on  the  judgment,  is  nudum  pactum, 
being  without  consideration,  and  does  not  prevent  the  creditor  after 
payment  of  the  whole  and  costs  from  proceeding  to  enforce  pay- 
ment of  the  interest  upon  the  judgment."  That  decision  was 
founded  upon  the  doctrine  laid  down  so  long  ago  as  Pinnel's 
Case,  5  Co.  Rep.  117  a,  ante  p.  36S  ;  Co.  Litt.  212  b,  and  it  will  be 
sufficient  for  my  purpose  here  if  I  refer  to  what  Lord  Blackburn 
said  in  his  speech  as  to  that  case,  9  App.  Cas.  615:  "That  was  an 
action  on  a  bond  for  £16  conditioned  for  the  payment  of  £8  10s. 
on  the  11th  of  November,  1600.  Plea,  that  defendant,  at  plaintiff's 
request,  before  the  said  day,  —  to  wit,  on  the  1st  of  October,  —  paid 
to  the  plaintiff  £5  2s.  2d.,  which  the  plaintiff  accepted  in  full  satis- 
faction of  the  £8  10s.  The  plaintiff  had  judgment  for  the  insuf- 
ficient pleading,"   and  his   Lordship   went  on  to   state  that   Lord 


394  ACCORD   AND    SATISFACTION. 

No.  3.  —  Bidder  v.  Bridges. 

Coke  reports  that  the  court  resolved  "  that  payment  of  a  lesser 
sum  on  the  day  in  satisfaction-  of  a  greater  cannot  be  any  satis- 
faction for  the  whole ;  .  .  .  .  but  the  gift  of  a  horse,  hawk,  or  robe, 
&c,  in  satisfaction,  is  good.  For  it  shall  be  intended  that"  either 
"  might  be  more  beneficial  to  the  plaintiff  than  the  money ; "  and 
after  referring  further  to  that  case  Lord  Blackburn  said  :  "There 
are  two  things  here  resolved.  First,  that  where  a  matter  paid  and 
accepted  in  satisfaction  of  a  debt  certain  might  by  any  possibility 
be  more  beneficial  to  the  creditor  than  his  debt,  the  court  will  not 
inquire  into  the  adequacy  of  the  consideration."  And  secondly, 
"  that  payment  of  a  lesser  sum  on  the  day  cannot  be  any  satis- 
faction of  the  whole."  There  were,  therefore,  two  resolutions  in 
PinneVs  Case,  and  the  decision  of  the  House  of  Lords  affirmed  the 
second;  but,  as  I  understand  that  decision,  it  did  not  in  any  way 
disaffirm  the  other.  Therefore  the  first  resolution  referred  to  by 
Lord  BLACKBURN  is  just  as  much  binding  on  me  as  the  second. 
Then  comes  the  question  here.  Is  a  negotiable  instrument  such  a. 
matter  as  may  be  "  paid  and  accepted  in  satisfaction  of  a  debt  cer- 
tain ? "  The  applicant  accepted  not  a  negotiable  instrument  of 
his  debtors,  but  that  of  their  solicitors.  He  took  the  cheque  of 
different  persons.  Was  that  an  accord  and  satisfaction  accord- 
ing to  the  authorities  ?  No  doubt  the  case  of  Cumber  v.  Wane,  1 
Str.  426 ;  1  Sm.  L.  C.  (8th  ed.)  p.  357,  was  one  in  reference  to  a 
promissory  note.  In  Foakes  v.  Beer,  9  App.  Cas.  605  ;  54  L.  J.  Q.  B. 
130,  ante  p.  370,  the  record  of  Cumber  v.  Wane  is  fully  stated  at 
page  619.  The  decision  was  that  giving  a  promissory  note  for 
£5  cannot  be  pleaded  as  a  satisfaction  for  £15,  but  this  has  been 
denied  by  a  series  of  authorities  to  be  law.  Thus  in  Sibree  v. 
Tripp,  15  M.  &  W.  23,  it  was  held  that  a  promissory  note  taken 
for  a  less  sum  than  the  demand  was  a  good  satisfaction,  —  that  a 
negotiable  instrument  for  a  smaller  sum  may  be  given  in  satisfac- 
tion of  a  larger  debt.  Then  there  is  the  case  of  Curlewis  v.  Clark, 
3  Ex.  375,  and  also  that  of  Goddard  v.  O'Brien,  9  Q.  B.  D.  37, 
which  goes  even  further  than  I  am  required  to  go  in  this  case. 
It  was  contended  that  these  three  authorities  went  upon  the  view 
that  Cumber  v.  Wane,  1  Str.  426  ;  1  Sm.  L.  C.  (8th  ed.)  p.  357,  was 
bad  law,  and  that  this  was  inconsistent  with  the  decision  in  Foakes 
v.  Beer,  9  App.  Cas.  605;  54  L.  J.  Q.  B.  130.  I  do  not,  however, 
understand  the  House  of  Lords  to  approve  of  the  application  made 
in  Cumber  v.  Wane  of  the  doctrine  laid  down  in  Pinnel's  Case,  5 


ACCORD    AND    SATISFACTION.  395 

No.  3.  —  Bidder  v.  Bridges. 

Co.  Hep.  117  «,  ante  p.  368;  Co.  Lit.  212  &.  In  that  case  there 
was  a  qualification  added  that  if  a  thing  of  a  different  kind  be 
given  that  is  a  good  satisfaction.  That  qualification  was  disre- 
garded in  Cumber  v.  Wane  ;  and  in  Foakesv.  lifer  this  circumstance 
is  commented  upon  by  both  Earl  Selborne  and  Lord  BLACKBURN. 
If  further  authority  is  required,  I  may  refer  to  the  notes  of  the  late 
Mr.  Justice  Willes  and  of  Mr.  Justice  Keating  to  the  case  of 
Cumber  v.  Wane  in  Smith's  Leading  Cases,  where  they  state  the 
law  to  be  that  a  demand  may  be  discharged  by  payment  of  a  thing 
different  from  that  contracted  to  be  paid  though  of  less  pecuniary 
value,  and  they  give  as  an  instance  a  negotiable  instrument  binding 
the  debtor  or  a  third  person  to  pay  a  smaller  sum.  Under  these 
circumstances,  having  regard  to  the  current  of  authorities,  which 
appear  to  me  to  be  unaffected  by  the  decision  of  the  House  of 
Lords,  I  hold  that  the  cheque  of  a  third  party  given  as  this  cheque 
was,  was  a  satisfaction  of  the  debt  and  was  a  good  payment. 

The  defendant  appealed  from  this  judgment;  and  after  argu- 
ment, judgments  were  delivered  which,  so  far  as  relates  to  the 
above  rule,  were  as  follows :  — 

Cotton,  L.  J.  ...  If  in  fact  B.  was  entitle  to  interest  on  these 
certificates  at  the  date  of  the  judgment,  and  gave  up  all  his  claim 
under  the  certificates,  then,  in  my  opinion,  he  gave  up,  if  there  was 
good  consideration,  all  those  matters  which  he  could,  without  any- 
thing further,  obtain  on  those  certificates,  even  though  he  did  not 
know  the  law  which  would  give  him  interest.  Of  course,  igno- 
rance of  general  law  will  not  excuse  any  man  when  he  enters  into 
an  agreement. 

But  it  is  said  that  our  decision  to  that  effect  would  be  a  contra- 
diction of  Foakes  v.  Beer,  9  App.  Cas.  605  ;  54  L.  J.  Q.  B.  130,  ante 
p.  370.  If  so,  that  is  a  decision  of  the  House  of  Lords,  and  we 
must  follow  it,  though  I  must  say  for  myself  that  where  the 
House  of  Lords  has  come  to  a  particular  construction  on  an  instru- 
ment, I  should  not  feel  myself  bound  to  follow  their  decision  In- 
putting a  construction  on  a  different  instrument  which  I  did  not 
think  the  correct  construction  of  that  instrument.  We  must  fol- 
low of  course  the  rules  which  they  lay  down  in  order  to  decide 
what  is  to  be  the  principle  of  construction.  All  that  Earl  Sel- 
borne decided  there  (and  none  of  the  other  Lords  who  delivered 
their  opinions  differed  from  it)  was  that,  looking  at  the  words  of  the 
agreement,  which  was  reduced  into  writing  in  that  case,  one  could 


396  ACCORD    AND    SATISFACTION. 

No.  3.  —  Bidder  v.  Bridges. 

only  take  it  as  an  agreement  to  receive  the  sum  of  money  and 
the  instalments  therein  mentioned,  in  consideration  of  the  prin- 
cipal sum  which  was  due,  and  nothing  more  ;  and  that  to  give  it  a 
different  construction  would  be  to  add  to  that  written  agreement, 
which  apparently  fully  expressed  the  intention  of  the  parties,  words 
which  were  not  there, — namely,  "  interest  on  those  sums."  That 
is  an  entirely  different  matter.  What  is  the  agreement  between  the 
parties  as  shown  by  their  acts  ?  In  my  opinion  the  agreement  was 
here  to  give  up  all  claim  in  respect  to  the  matters  mentioned  in 
the  certificates,  —  that  is,  in  respect  of  those  certificates. 

But  then  we  come  to  another  point  which  was  entered  into  very 
fully  by  Mr.  Justice  Stirling.  Was  there  a  consideration  ?  Now, 
I  think  the  law  is  generally  reasonable;  but  whether  Cumber  v. 
Wane,  1  Str.  426,  was  reasonable,  we  have  not  to  consider.  There 
is  a  qualification  of  the  rule  there  laid  down,  by  Judges  (whose 
decisions  we  ought  not  to  disregard  here),  by  making  exceptions 
which  will  reduce  that  case  to  something  like  principle.  They 
lay  down  this  :  that  though  the  payment  of  a  smaller  sum  cannot 
be  a  good  consideration  for  accord  and  satisfaction  of  a  claim  for 
a  larger  one,  yet  if  there  is  anything  which  can  be  a  new  considera- 
tion and  a  new  benefit  to  the  person  entitled  to  the  larger  sum, 
that  will  do  ;  and  the  only  thing  wTe  have  to  consider  is  whether 
here  in  this  case  there  was  anything  which  could  be  a  new  con- 
sideration,—  that  is,  some  new  and  different  benefit  to  the  person 
entitled  to  the  larger  sum  of  money.  Those  cases  which  I  have 
mentioned  go  particularly  to  this:  that  if  there  is  a  promissory 
note,  a  negotiable  instrument,  for  a  smaller  sum,  that  may  do. 
The  first  of  those  cases  relied  upon  on  this  point  goes  to  this: 
that  even  if  it  is  a  promissory  note  signed  by  the  person  who  is 
liable  for  the  larger  sum  that  will  do.  But  here  that  is  not  the 
case.  Here  the  solicitor  himself  gives  his  cheque  for  this  amount. 
It  is  very  true  he  was  paying  it  on  behalf  of  his  client,  but  not  pay- 
ing it  so  as  to  make  his  act  in  signing  that  cheque  the  act  of  his 
client.  He  gave  the  cheque  and  became  personally  responsible  for 
it,  though,  undoubtedly,  he  had  a  right  of  indemnity  as  against  his 
client  to  be  paid  by  him  whatever  he  might  pay  on  that  promis- 
sory note.  That  being  so,  in  my  opinion,  having  regard  to  the 
cases  which  have  qualified  Cumber  v.  Wane,  supra,  and  not  incon- 
sistently with  FoaJces  v.  Beer,  supra,  we  are  justified  in  holding 
that  there  was  sufficient  consideration  for  the  agreement  between 


ACCORD    AND    SATISFACTION.  397 

No.  3.       Bidder  v.  Bridges.    -Notes. 

the  solicitor  of  the  defendant  and  the  solicitor  of  the  plaintiffs  to 
support  the  contract  to  which  I  have  referred.  In  my  opinion  the 
appeal  fails. 

Lindley,  L.J.  ...  I  am  not  going  to  spend  time  in  discussing 
Pinners  Case  and  Cumber  v.  Wane,  and  that  class  of  cases.  It 
appears  to  me  that  for  the  reasons  given  by  Lord  Justice  COTTON, 
we  are  outside  those  cases. 

Lopes,  L.  J.  I  take  it  the  law  is  quite  clear  that  the  payment 
of  a  smaller  sum  cannot  be  pleaded  as  accord  and  satisfaction  to  a 
claim  for  a  larger  sum;  it  is  only  a  payment  pro  tanto.  In  Cam- 
ber v.  Wane  it  was  laid  down  that  giving  a  promissory  note  for 
£5  could  not  be  pleaded  as  accord  and  satisfaction  where  the  claim 
was  for  a  debt  of  £15  ;  but  that  decision  was  modified  by  the  case  of 
Sib  ire  v.  Tripp,  15  M.  &  W.  23,  where  it  was  held  that  a  negotia- 
ble security  may  operate,  if  so  given  and  taken,  in  satisfaction  of 
a  debt  of  greater  amount;  the  circumstance  of  negotiability  mak- 
ing it,  in  fact,  a  different  thing,  and  more  advantageous  than  the 
original  debt,  which  was  not  negotiable. 

Now,  it  is  also  law  that  the  giving  of  a  negotiable  instrument  for 
a  smaller  sum  by  a  third  party  would  support  accord  and  satisfac- 
tion. The  principle  which  runs  through  all  the  cases  is  this,  that 
there  is  a  possibility  of  a  benefit  accruing  to  the  creditor  which 
is  the  consideration  for  the  relinquishment  of  the  residue  of 
the  debt. 

ENGLISH   NOTES. 

The  case  of  Curlewls  v.  Clark  (1849),  3  Ex.  475,  which  was  referred 
to  in  Lord  Selborne's  judgment  in  Foakes  v.  Beer(\).  375,  ante),  and  in 
the  argument  of  the  principal  case  (p.  371,  ante),  is  an  illustration  of 
the  above  rule.  The  plea  was  that  a  stamped  blank  acceptance  of  a  third 
party  (the  Earl  of  Mexborough)  for  £25  had  been  agreed  to  be  given 
by  the  defendant  and  had  been  accepted  by  the  plaintiff  in  satisfaction 
of  £60  4s.  6d.,  part  of  the  debt.  The  Court  of  Exchequer  held  that  it 
was.  It  does  not  appear,  however,  that  the  Court  in  this  case  dis- 
tinguished between  a  negotiable  instrument  containing  an  obligation 
of  a  third  person  from  one  of  the  defendant  himself.  Parke,  B.,  cites 
the  ruling  in  PhineVs  Case,  relating  to  the  gift  of  a  horse,  &c.  ; 
and  Aldersox,  B.,  observes:  "We  cannot  value  the  signature  of 
the  Earl  of  Mexborough;  possibly  it  may  be  worth  something  as  an 
autograph." 

The  rule  is  also  supported  by  the  earlier  case  of  Steinman  v.  Magnus 
(1809),  11  East,  390,  which  is  not  cited  in  the  report  of  the  principal 


398  ACCORD    AND    SATISFACTION. 

No.  4.  —  Richards  and  Bartlet's  Case. — Rule. 

case.  There  the  debtor  entered  into  an  agreement  with  creditors  that 
they  agreed  to  receive  20  percent,  of  their  debts  and  to  release  the 
remainder,  in  consideration  of  a  security  to  be  given  by  a  third  person 
for  half  of  the  composition.  This  security  was  given  and  paid  on 
maturity.  The  release  though  not  under  seal  was  held  to  be  good. 
Lord  Ellexbokough,  C.  J.,  observed  (11  East,  p.  393):  "it  is  true 
that  if  a  creditor  simply  agrees  to  accept  less  from  his  debtor  than  his 
just  demand,  that  will  not  bind  him;  but  if  upon  the  faith  of  such  an 
agreement  a  third  person  be  lured  in  to  become  surety  for  any  part  of 
the  debts,  on  the  ground  that  the  party  will  be  thereby  discharged  of 
the- remainder  of  his  debts,  and  still  more  when,  in  addition  to  that, 
other  creditors  have  been  lured  in  by  the  agreement  to  relinquish 
their  further  demands  upon  the  same  supposition,  that  makes  all  the 
difference  in  the  ease,  and  the  agreement  will  be  binding." 

AMERICAN    NOTES. 

Acceptance  of  accord  from  a  stranger  is  a  satisfaction.  Leavitl  v.  Aforrnic,ti 
( )hio  St.  71  ;  67  Am.  Dec.  334,  disapproving  the  early  English  rule  of  Grymes  v. 
Blofield,  Cro.  Eliz.  541,  and  Edgecomb  v.  Kudd,b  East.  294:  soBoyd  v.  Hitch- 
cock, 20  Johnson  (New  York).  70;  11  Am.  Dec.  247  ;  Le  Page  v.  McCrea,  1 
Wendell  (New  York),  104;  19  Am.  Dec.  169;  Brooks  v.  While,  2  Metealf 
(Mass.),  283;  37  Am.  Dec.  95;  Clark  v.  Abbott  (Minnesota).  55  N.  W.  Rep. 
542;  Varney  v.  Conery,  77  Maine,  527;  Fowler  v.  Smith  (Penn.),  25  Atlantic 
Reporter,  744. 

But  payment  of  a  less  sum  by  a  stranger  on  a  note,  with  a  promise  by  the 
holder  not  to  sue  the  maker,  and  no  surrender  of  the  note,  is  no  satisfaction. 
Marston  v.  Bigelow,  154  Massachusetts,  45. 


No.  4.  —  RICHARDS   AND    BARTLET'S   CASE. 

(K.  b.  1583.) 

RULE. 

An  accord  not  executed  is  no  satisfaction  of  a  liquid  debt. 
Richards  and  Bartlet's  Case. 

1  Leonard.  19  (case  23). 

Dorothy  Richards,  executrix  of  A.,  her  former  husband,  brought 
an  action  upon  the  case  upon  a  promise  against  Humfrey  Bartlet, 
and  declared  that  in  consideration  of  two  weighs  of  corn,  delivered 
by  the  testator  to  the  defendant,  he  did  promise  to  pay  to  the 
plaintiff  ten  pounds,  to  which  the  defendant  said,  that  after  the 
assumpsit,  the  plaintiff,  in  consideration  that  the  said  two  weighs 


ACCORD    AND    SATISFACTION.  399 

No.  4.     -Richards  and  Bartlet's  Case.  — Notes. 

were  drowned  by  tempest,  and  in  consideration  that  the  defendant 
would  pay  to  the  plaintiff  for  every  twenty  shillings  of  the  said 
ten  pounds  three  shillings  four  pence  scil.  in  l<>t'>  thirty-three 
shillings  four  pence,  did  discharge  the  said  defendant  of  the  said 
promise,  and  averred  further  that  he  hath  been  always  ready  to 
pay  the  said  sum  newly  agreed,  upon  which  there  was  a  demurrer. 
And  the  opinion  of  the  whole  Court  was  clearly  with  the  plaintiff: 
first,  because  that  here  is  not  any  consideration  set  forth  in  tin- 
bar,  by  reason  whereof  the  plaintiff  should  discharge  the  defendant 
of  this  matter,  for  no  profit  but  damage  comes  to  the  plaintiff  by 
this  new  agreement,  and  the  defendant  is  not  put  to  any  labour  or 
charge  by  it ;  therefore,  here  is  not  any  agreement  to  bind  the 
plaintiff.  §  19  H.  6,  Accord  1,  9  E.  4,  13,  12  H.  7,  15.  See  also 
Onlies  Case,  19  Eliz. —  Dyer  then  admitting  that  the  agreement  had 
been  sufficient,  yet,  because  it  is  not  executed,  it  is  not  any  bar; 
and  afterwards  judgment  was  given  for  the  plaintiff. 

ENGLISH   NOTES. 

It  will  be  observed  that  the  decision  was  upon  two  points:  first,  that 
there  was  no  consideration  for  the  agreement;  and.  secondly,  that  the 
agreement,  such  as  it  was,  was  not  executed.  Where  there  is  no  con- 
sideration for  the  agreement,  the  defence  fails,  whether  the  so-called 
agreement  had  been  executed  or  not,  and  whether  the  claim  is  for  a 
liquidated  debt  or  for  unliquidated  damages.  This  is  the  ground  of 
the  decision  of  the  King's  Bench  in  Willoiighby  v.  Backhouse  (1824), 
4  1).  &  K.  539;  2  L.  J.  K.  B.  174.  It  was  an  action  for  an  excessive 
distress.  To  avoid  a  sale  taking  place  at  a  loss,  the  plaintiff  had  by  an 
agreement  authorised  the  defendant  to  sell  the  goods  distrained,  which 
had  been  done  accordingly.  The  defendant  set  up  this  agreement  as  a 
bar  to  the  action.  The  Judge  at  the  trial  had  left  it  to  the  jury  whether 
the  agreement  amounted  to  an  acquiescence  in  the  distress,  and  directed 
them  that  if  it  was  an  acquiescence,  there  was  a  good  defence  to  the 
action.  On  motion  for  a  new  trial,  the  Court  held  that  the  agreement 
did  not  operate  as  a  bar  to  the  action.  It  was  pointed  out  by  Bailey, 
J.,  that  the  defendant  (the  landlord)  gave  up  nothing,  and  the  plain- 
tiff gained  nothing,  b3r  the  agreement.  Littledale,  J.,  observed: 
"  When  a  right  of  action  is  once  vested  in  a  man,  it  cannot  be  divested 
by  any  parol  declaration,  or  by  any  agreement  not  under  seal.  Where 
such  a  defence  is  set  up,  the  defendant  must  show  either  an  agreement 
by  deed  to  waive  the  action,  or  a  satisfaction  in  law  rendered  to  the 
plaintiff.  Here  there  is  no  deed;  is  there  any  satisfaction  ?  Clearly 
not;    no   benefit    or   advantage   is   conferred   upon   the   plaintiff;    and 


400  ACCOKD    AND    SATISFACTION. 

No.  5.  —  Adams  v.  Tapling.  —  Kule. 

therefore  lie  lias  not  released  his  original  right  to  a  remedy  for  the 
injury  he  has  sustained." 

In  Davenport  v.  Rylands,  a  patent  suit  (1865),  L.  R.  1  Eq.  302;  35 
L.  J.  Cli.  L'04,  it  was  alleged  that  after  the  defendant  had  been  charged 
with  infringement,  an  arrangement  had  been  come  to  by  which  the  de- 
fendants, in  consideration  of  the  plaintiff's  refraining  from  taking  pro- 
ceedings, would  buy  only  from  the  plaintiff.  Sir  W.  Page  Wood, 
V.  C,  in  his  judgment,  observed  that  the  alleged  agreement  had  not 
been  proved;  and  that,  if  it  had  been,  the  promise  of  the  defendants  to 
buy  only  from  the  plaintiff  could  not  amount  to  an  accord  and  satisfac- 
tion for  the  injury  already  done  by  the  infringement. 

In  the  case  of  Barclay  v.  Bank  of  New  South  Wales  (an  appeal 
from  New  South  Wales  1880),  5  App.  Cas.  .*>74,  the  question  arose 
upon  a  demurrer  to  a  plea.  The  action  was  for  breach  of  an  agreement. 
The  plea  set  forth  another  agreement  come  to  between  the  plaintiff  and 
defendant  after  disputes  had  arisen.  The  plea  did  not  in  terms  state 
that  the  agreement  was  accepted  by  the  parties  in  accord  and  satisfac- 
tion of  the  causes  of  action.  Nor  did  that  appear  to  be  the  necessary 
effect  of  the  terms  of  the  agreement  set  forth.  The  Judicial  Com- 
mittee held  the   plea  to  be  bad. 

AMERICAN  NOTES. 
Unexecuted  accord  is  no  satisfaction.  McKean  v.  Reed,  Littell  (Kentucky), 
39.1;  )2  Am.  Dec.  318;  Russell  v.  Lytle,  6  Wendell  (New  York),  390;  22  Am. 
Dec.  537  ;  Geiser  v.  Kershner,  1  Gill  &  Johnson  (Maryland),  305  ;  23  Am.  Dec. 
566  ;  Brooklyn  Bank  v.  De  Grauw,  23  Wendell  (New  York).  312  ;  35  Am.  Dec. 
569  :  Dille.r  v.  Brubaker,  52  Penn.  St.  498  ;  91  Am.  Dec.  177 ;  Young  v.  Jones, 
01  Maine.  563  ;  18  Am.  Rep.  279  (case  of  sealed  executory  agreement);  Kramer 
v.  Heini,  75  New  York,  574,  citing  many  early  English  cases  ;  Hancock  v.  Yai/en, 
121  Indiana,  366 ;  16  Am.  (St.  Rep.  396. 


No.  5.— ADAMS   v.   TAPLTNG. 

(K.    B.    1691.) 
RULE. 

Where  a  claim  is  for  unliquidated  damages,  or  is  uncertain, 
a  less  sum  may  be  paid  and  accepted  in  satisfaction. 

Adams  v.  Tapling. 

4  Mod.  88  (case  32). 

Covenant.     The  breaches  assigned  were  that  the  houses  were 
not   in    repair;    that  the  locks  were  taken   away;  and  that  the 


ACCORD    AND   SATISFACTION.  401 

No.  5.  —  Adams  v.  Tapling.  —  Notes. 

hedges  were  broken  down,  and  the  ditches  unseoured.  The  de- 
fendant pleads  an  agreement  made  between  the  plaintiff  and  him, 
that  he  should  employ  a  workman  three  or  four  days  in  and  about 
the  repairing  of  the  house,  which  should  be  a  sufficient  satisfac- 
tion, and  that  he  had  employed  a  .workman,  etc.  Upon  this  plea 
they  were  at  issue,  and  there  was  a  verdict  for  the  defendant. 

It  was  now  moved  in  arrest  of  judgment;  and  the  exceptions- 
taken  were :  — 

First,  Where  an  "  accord  and  satisfaction  "  is  pleaded  it  must  be 
real;  but  in  this  case  it  was  no  more  than  the  defendant  was 
obliged  to  do. 

Secondly.  There  are  several  breaches  assigned,  and  the  defen- 
dant has  only  answered  to  the  repairs  of  the  house,  and  so  it  is  a 
discontinuance  in  pleading,  which  is  not  aided  by  a  verdict. 

Thirdly.  The  satisfaction  is  uncertain,  —  viz.,  to  employ  a  man 
to  work  three  or  four  days. 

And  for  these  reasons  judgment  was  stayed. 

Curia.  In  covenant  where  the  damages  are  uncertain  and  to  be 
recovered,  as  in  this  case,  a  lesser  thing  may  be  done  in  satisfaction, 
and  there  "  accord  and  satisfaction "  is  a  good  plea.  But  in  an 
action  of  debt  upon  a  bond,  where  the  sum  to  be  paid  is  certain, 
there  a  lesser  sum  cannot  be  paid  in  satisfaction  of  a  greater. 

ENGLISH   NOTES. 

This  case  is  set  forth  chiefly  for  the  ruling  of  the  court  at  the  con- 
clusion of  the  case.  What  was  the  precise  ground  on  which  the 
decision  was  rested  is  not  made  very  clear  by  the  report.  But  there  is 
room  for  a  clear  distinction,  that  where  the  obligation  is  to  pay 
damages  of  an  uncertain  amount,  there  is  a  consideration  on  both  sides 
for  the  agreement  to  pay  and  accept  a  sum  certain;  for  the  sura 
payable  might  have  been  found  to  be  less  or  more.  But  in  the  actual 
case,  what  the  defendant  agreed  to  do  in  the  way  of  repair  was  clearly 
not  more  than  he  was  bound  to  do  under  the  covenant,  though  it  may 
have   been  much   less. 

In  Ibberson  v.  Neck  (1885),  2  Times  Rep.  427,  the  claim  was  for 
the  amount  of  a  solicitor's  bill  of  costs.  The  plaintiff  set  up  in  answer 
an  oral  agreement,  and  payments  made  by  him  of  amounts  less  than 
the  claim,  which  he  alleged  had  been  made  and  accepted  in  satisfaction 
of  certain  charges  contained  in  the  bill  of  costs.  Mr.  Baron  Hud- 
dleston  ruled  that,  the  bill  being  untaxed,  the  charges  must  be  taken 
1o  have  been  uncertain  and  unascertained  sums,  and  that  for  that 
v<-i,.  i.       <2<\ 


402  ACCORD    AND    SATISFACTION. 


No.  5.  —  Adams  v.  Tapling.  —  Notes. 


reason  the  rase  of  Foakes  v.  Beer,  9  App.  Cas.  605;  54  L.  J.  Q.  B.  130, 
ante  p.  370,  did  not  apply.  He  therefore  treated  the  sums  so  paid  as 
having  satisfied  the  amounts  which  under  the  agreements  they  had 
been  intended  to  satisfy. 

AMERICAN    NOTES. 

Where  damages  are  unliquidated,  the  payment  and  acceptance  of  a  sum  of 
money  is  a  satisfaction  and  bar.  Stockton  v.  Frey,  1  Gill  (Maryland),  400; 
45  Am.  Dec.  138;  McDaniels  v.  Bank  of  Rutland,  29  Vermont,  230;  70  Am. 
Dec.  406;  Warren  v.  Skinner,  '20  Connecticut,  559;  Donahue  v.  Woodbury, 
6*  dishing  (Mass.),  148;  52  Am.  Dec.  777.  by  Shaw,  C.  J. 

So  of  the  acceptance  of  a  dead  body,  for  loss  of  which  a  carrier  is  sued. 
Benihan  v. Wright,  125  Indiana,  5:50;  21  Am.  St.  Rep.  249.  Even  in  an  action 
on  a  sealed  instrument,  sounding  in  damages,  though  secured  by  a  penalty. 
Cole  v.  Jameson,  10  Iredell  Law  (No.  Carolina),  19:5 ;  .">1  Am.  Dec.  380  ;  Mitch- 
ell v.Hawley,  4  Denio  (New  York).  414;  47  Am.  Dec.  200. 

An  authoritative  and  very  recent  case  is  Fuller  v.  Kemp,  138  New  York, 
231  The  plaintiff  sent  a  bill  of  *070  to  defendant  for  medical  services, 
and  defendant,  while  not  disputing  the  services,  objected  to  the  amount 
and  declined  to  pay  the  bill  rendered,  but  sent  a  cheque  for  $400,  stating 
that  it  was  to  be  in  full  satisfaction  of  plaintiff's  claim.  Plaintiff  retained  the 
cheque,  but  sent  another  Kill  lor  the  same  amount,  on  which  he  credited  the 
amount  of  the  cheque  as  part  payment.  Defendant  at  once  notified  plaintiff 
that  he  had  sent  the  cheque  on  condition  that  it  should  be  received  in  full 
payment  of  his  hill,  and  that  plaintiff  must  either  keep  it  on  that  condition 
or  immediately  return  it.  It  was  held  that  the  debt,  which  was  unliquidated, 
was  satisfied  by  the  retention  of  the  cheque,  since  its  acceptance  involved  the 
acceptance  of  the  condition  also. 

The  court  observed  :  -Where  the  demand  is  liquidated,  and  the  liability  of 
the  debtor  is  not  in  good  faith  disputed,  a  different  rule  has  been  applied.  In 
such  cases  the  acceptance  of  a  less  sum  than  is  the  creditor's  due  will  not,  of 
itself,  discharge  the  debt,  even  if  a  receipt  in  full  is  given.  44ie  element  of  a 
consideration  is  lacking,  and  the  obligation  of  the  debtor  to  pay  the  entire 
debt  is  not  satisfied.  There  are  many  authorities  which  enforce  this  propo- 
sition, but  they  have  no  relevancy  to  a  case  like  the  present,  where  the  debt 
was  unliquidated,  and  there  was  a  bona  fide  disagreement  in  regard  to  the 
extent  of  the  debtor's  liability.  The  law  favours  the  adjustment  of  such  con- 
troversies without  judicial  intervention,  and  will  not  permit  the  creditor  to 
accept  and  retain  money  which  has  been  tendered  by  way  of  compromise,  and 
then  successfully  litigate  with  his  debtor  for  the  recovery  of  a  greater  sum. 
There  have  been  some  cases  in  our. own  courts  where  this  principle  has  been 
applied,  but  in  none  that  we  have  examined  has  the  question  arisen  in  the 
exact  form  here  presented.  Palmerton  v.  Huxford,  4  Denio,  106;  Looby  v. 
Village  of  West  Troy,  24  Hun,  78;  Hills  v.  Sommer,  53  Hun,  392,  0  N.  Y.  Supp. 
469.  In  other  States  there  are  many  decisions  directly  in  point,  where  the 
facts  were  not  distinguishable  from  those  appearing  in  this  record.  McDaniels 
v.  Lapham,  21  ATermont,  222 ;  Preston  v.  Grant,  34  Vermont,  201 ;   Towslee  v. 


ACCORD   AND   SATISFACTION.  403 


No.  6.  —  Case  v    Barber.       Rule. 


l/ealey,  39  Vermont,  522  ;  Boston  Rubber  Co.  v.  Peerless  Wringer  Co.,  58  Ver- 
mont, 559 ;  Bull  v.  LV/,  13  Connecticut, 455  ;  Potter  \ .  Douglass,  WConnecti 
out,  541 ;  Reed  v.  Boa  rthnan,  20  Pickering  (Mass.),  Ill;  Dohohue  v.  Woodbury, 
6  dishing  (Mass.),  1 18  ;  Hilliard  v.  Noyes,  58  New  Hampshire,  312  ;  Z>7u7,  v. 
Plymouth  Co.,  63  Iowa,  -tt>2 ;  Hinkle  v.  Railroad  Co.,  M  .Minnesota,  434.  In 
Preston  v.  Grant,  supra,  the  Supreme  Court  of  Vermont  very  sharply,  and.  as 
we  think,  correctly,  denned  the  line  of  discrimination  which  separates  this 
class  of  cases  from  those  where  the  defence  fails.  Judge  Pierpoint,  deliver- 
ing the  opinion  of  the  court,  says:  •  To  constitute  an  accord  and  satisfaction, 
it  is  necessary  that  the  money  should  be  ottered  in  satisfaction  of  the  claim, 
and  the  offer  accompanied  with  such  acts  and  declarations  as  amount  to  a 
condition  that  if  the  money  is  accepted,  it  is  accepted  in  satisfaction,  and 
.such  that  the  party  to  whom  it  is  offered  is  bound  to  understand  therefrom 
that  if  he  takes  it,  he  takes  it  subject  to  such  condition  When  a  tender  or 
offer  is  thus  made,  the  party  to  whom  it  is  made  has  no  alternative  but 
to  refuse  it  or  accept  it  upon  such  condition.  If  he  takes  it,  his  claim  is  can- 
celled, and  no  protest,  declaration,  or  denial  of  his,  so  long  as  the  condition  is 
insisted  on,  can  vary  the  result  The  principle  is  too  well  settled  in  this 
•State  to  require  either  argument  or  the  citation  of  authorities  to  support  it.' 
To  make  out  the  defence,  the  proof  must  be  clear  and  unequivocal  that  the 
observance  of  the  condition  was  insisted  upon,  and  must  not  admit  of  the 
inference  that  the  debtor  intended  that  his  creditor  might  keep  the  money 
tendered  in  case  he  did  not  assent  to  the  condition  upon  which  it  was  offered. 
The  defendant  here  has  brought  his  case  clearly  within  the  rule,*'  &c. 


No.  6.  — CASE  v.  BARBER 
(k.  b.  1681.) 

RULE. 

Accord  by  mutual   promises  with  reciprocal  rights  may, 
although  unexecuted,  be  sood  in  law  as  satisfaction. 

Case  v.   Barber. 

Sir  T.  Raymond,  p.  450. 

Tne  plaintiff  declares,  in  an  indebitatus  assumpsit,  for  £20  for 
meat,  drink,  washing,  and  lodging  for  the  defendant's  wife,  pro- 
vided for  her  at  the  request  of  the  defendant,  and  la}\s  it  two 
■other  ways.  The  defendant  pleads  that  after  the  making  the  said 
promise,  &c.,  and  before  the  exhibiting  the  said  bill,  viz.,  such  a 
day,  it  was  agreed  between  the  plaintiff  and  the  defendant,  and 
•one  Jacob  Barber,  his  son,  that  the  plaintiff  should  deliver  to 
the  defendant  divers  clothes  of  the  defendant's  wife  then  in  her 
•custody,  and  that  the  plaintiff  should  accept  the  said  Jacob,  the 


404  ACCORD    AND    SATISFACTION. 

No.  6.       Case  v.  Barber. 

son,  for  her  debtor  for  £9,  to  be  paid  as  soon  as  the  said  Jacob 
should  receive  his  pay  due  from  his  Majesty,  as  lieutenant  of  the 
ship  called  the  Happy  Return,  in  full  satisfaction  and  discharge 
of  the  premises  in  the  declaration  mentioned ;  and  avers  that  the 
plaintiff  the  same  time  did  deliver  to  the  defendant  the  said 
clothes,  and  that  she  accepted  the  said  Jacob,  the  son,  her  debtor 
for  the  said  £9,  and  that  the  said  son  agreed  to  pay  the  same  to 
the  plaintiff  accordingly  ;  and  that  the  said  Jacob  afterwards,  and 
as  soon  as  he  received  his  pay  as  aforesaid,  —  viz.,  27  April  (32 
Car.  2), — was  ready  and  offered  to  pay  the  said  £9,  and  the  plain- 
tiff refused  to  receive  it;  and  that  the  said  Jacob  hath  always 
since  been,  and  still  is,  ready  to  pay  the  same,  if  the  said  plain- 
tiff will  receive  it.  Et  hoc  paratus,  &c  The  plaintiff  demurs. 
And  it  was  alleged  by  the  defendant's  counsel  that  the  plea  is 
good  ;  for  though  in  Peyto's  Case,  and  formerly,  it  hath  been  held 
that  an  accord  cannot  be  pleaded  unless  it  appears  to  be  executed 
(9  Co.  79,  b.  3  Cro.  46,  pi.  2),  yet  of  late  it  hath  been  held  that  upon 
mutual  promises  an  action  lies,  and  consequently,  there  being  equal 
remedy  on  both  sides,  an  accord  may  be  pleaded  without  execution 
as  well  as  an  arbitrement,  and  by  the  same  reason  that  an  arbitre- 
ment  is  a  good  plea  without  performance:  to  which  the  Court 
agreed;  for  the  reason  of  the  law  being  changed, the  law  is  thereby 
changed;  and  anciently  remedy  was  not  given  for  mutual  promises, 
which  now  is  given;  and  for  this  reason,  Mich.  18  Car.  B.  11., 
Palmer  v.  Lawson.  In  indebitatus  assumpsit  against  an  execu- 
tor upon  a  contract  made  by  the  testator,  the  defendant  pleads 
judgment  in  debt  upon  simple  contract  against  him  for  the  debt 
of  the  testator,  and  after  argument  resolved  a  good  plea ;  be- 
cause though  in  debt  against  an  executor  upon  a  simple  contract 
the  defendant  may  demur,  yet  when  he  admits  the  demand,  and 
executors  are  now  liable  to  pay  such  debts  in  action  upon  the  case, 
the  judgment  so  obtained  was  pleadable  ;  so  Vaughan  Rep.,  Dee  v. 
Edgcomb. 

But  in  this  case  at  bar  judgment  was  given  for  the  plaintiff  for 
two  reasons  :  — ■ 

1.  Because  it  doth  not  appear  that  there  is  any  consideration 
that  the  son  should  pay  the  £9,  but  only  an  agreement  without 
any  consideration. 

2.  Admit  the  agreement  would  bind,  yet  now  by  the  Statute  of 
Frauds  and  Perjuries,  29   Car.  2,  this  agreement  ought  to  be  in 


ACCOUD    AND    SATISFACTION.  40  fj 


No.  6.  —  Case  v.  Barber.  —  Notes. 


writing,  or  else  the  plaintiff  could  have  no  remedy  thereon  ;  and 
though  upon  such  an  agreement  the  plaintiff  need  not  set  forth  the 

agreement  to  he  in  writing,  yet  when  the  defendant  pleads  such  an 
agreement  in  bar,  he  must  plead  it  so  as  it  may  appear  to  the  court 
that  an  action  will  lie  upon  it,  for  he  shall  not  take  away  the 
plaintiff's  present  action,  and  not  give  him  another  upon  the  agree- 
ment pleaded. 

AMERICAN   NOTES. 

An  oral  agreement  by  the  maker  of  a  note  to  pay  before  maturity,  and  by 
the  holder  to  accept,  a  smaller  sum  in  satisfaction  is  valid.  Schweider  v. 
Long,  29  Minnesota,  254  ;  43  Am.  Rep.  202,  "a  case  of  mutual  promises,  one  of 
which  is  the.  consideration  of  the  other."  So  the  taking  of  the  debtor's  own 
note  for  a  less  sum  in  full.     See  cases  ante,  p.  392. 

An  instance  of  a  substitution  in  satisfaction  maybe  found  in  Thurber  v. 
Sprague,  17  Rhode  Island,  634  (a.  d.  1802).  A  father,  as  trustee  for  his  minor 
son,  had  made  a  deposit  of  |500  in  a  savings  bank.  The  son,  coming  of  age, 
demanded  the  deposit,  and  the  father  replied  :  "I  never  want  to  hear  of  lliis 
matter  again.  I  made  the  change  of  investment  supposing  it  was  for  the  best, 
but  it  was  not.  1  have  made  it  up  to  you  many  times  over.  If  you  are  not 
satisfied,  and  want  the  $500,  take  it  and  go;  but  if  you  remain  here,  I  don't 
want  to  hear  of  it  again."  The  son  after  this  remained  at  home  and  was 
supported  by  his  father.     Held,  a  valid  accord  and  satisfaction. 

Debt  on  a  judgment  cannot  be  barred  at  common  law  by  an  accord  and 
satisfaction  by  parol.     Mitchell  v.  Hawley,  4  Deuio  (New  York),  414. 

But  the  contrary  is  held  in  Saoaye  v.  Everman,  70  Penn.  St.  315;  10  Am. 
Rep.  076,  Sharswood,  J.,  observing  that  this  doctrine  is  maintained  by  "the 
American  authorities,  without  a  single  exception  that  T  can  find,"  citing 
Evans  v.  Wells,  22  Wendell  (New  York),  341;  Harden  v.  Campbell,  4  Gill 
(Maryland),  20;  Reid  v  Hibbard,  6  AVisconsin,  175;  Jones  v.  Ransom,  3  Indi- 
ana, 327;  Bankx.  Groves,  12  Howard  (U.  S.  Sup.  Ct.),  51. 


406  ACCOUNT. 

No.  1.  —  Taff  Vale  Railway  Co.  v.  Nixon.  —  Rule. 


ACCOUNT. 

Section      I.  Jurisdiction  of  Court  of  Equity. 

Section    II.  What  may  he  recovered  on  a  Stated  Account. 

Section  III.  Settled  Accounts,  how  far  Conclusive. 

Section  IV.  Accounts  between  Tenants  in  Common. 


Section  I.  —  Jurisdiction  of  Court  of  Equity. 

Note.  Although  questions  as  to  the  exclusive  jurisdiction  of  Courts  of  Law  and 
Equity  are  now  obsolete  in  England,  a  few  cases  under  this  head  are  retained  for  use 
in  relation  to  States  where  the  old  line  of  demarcation  is  kept  up. 


No.  1.—  TAFF    VALE    RAILWAY  CO.    r.   NIXON. 

(li.  l.  1847.) 

RULE. 

Where  an  account  has  become  so  complicated  that  a 
Court  of  Law  would  be  incompetent  to  examine  it  upon  a 
trial  at  nisi  prkis,  it  is  matter  proper  for  the  cognisance  of 
a  Court  of  Equity. 

Taff  Vale  Railway  Co.  v.  Nixon. 

1  H.  L.  C.  111. 

This  was  an  appeal  from  a  decree  of  the  Vice  Chancellor  of 
England,  directing  certain  accounts  to  be  taken,  as  hereinafter 
mentioned;  and  the  question  in  substance  was,  whether  an  action 
at  law  was  not  a  more  appropriate  course  of  proceeding  than  a 
bill  in  equity. 

The  appellants  were  a  railway  company,  incorporated  by  act  of 
Parliament.  The  respondent  Nixon  was  a  railway  contractor ;  and 
by  an  indenture  dated  the  6th  of  April,  183S,  and  made  between 
him  and  the  appellants,  being  a  railway  contract  in  the  ordinary 
form,  he  contracted  to  do  certain  works  mentioned  in  the  specifica- 
tion annexed  thereto,  for  the  sum  of  £7395  1 5s.,  subject  to  deduc- 
tion or  increase  as  in  the  contract  stated,  and  with  a  provision  for 


SECT.  I.  —  JURISDICTION.  4<>7 


No.  1.  —  Taff  Vale  Kailway  Co.  v.  Nixon. 


payment  for  extra  works,  at  prices  particularly  specified.  Nixon 
having  to  some  extent  proceeded  with  the  execution  of  the  works,, 
was  under  the  necessity  of  procuring  advances  of  money,  and  for 
that  purpose  applied  to  David  Storm,  who  was  also  a  railway  con- 
tractor, to  advance  him  sufficient  money  to  complete  the  works, 
which  Storm  agreed  to  do;  and  accordingly  an  agreement  was  en- 
tered into,1  and  a  power  of  attorney,  dated  8th  December,  1838,  was 
given  by  Nixon,  which,  after  reciting  the  said  contract  and  applica- 
tion to  Storm  for  the  advance  of  money,  constituted  him  the  lawful 
attorney  of  Nixon,  to  direct  and  carry  on,  in  his  name,  the  works 
comprised  in  the  contract,  and  to  demand,  sue  for,  and  receive  from 
the  company  all  sums  of  money  which  from  time  to  time  might 
become  due  from  them  to  Nixon  under  the  contract,  and  to  give 
them  discharges,  and  to  compromise  or  refer  to  arbitration  all  dis- 
putes that  might  arise  respecting  the  performance  of  the  works, 
and  also  to  pay  for  Nixon,  out  of  the  moneys  to  be  received  from 
the  company,  all  debts  and  just  demands  which  might  accrue  to 
Storm  or  others,  against  Nixon  during  the  progress,  and  until  the 
completion,  of  the  said  works,  and  generally  to  do  and  perform  all 
acts  which  Storm  should  judge  necessary  in  and  about  the  prem- 
ises, and  to  retain  to  himself,  out  of  the  moneys  to  be  received  from 
the  company,  £5  per  cent,  for  interest  on  all  his  advances  and  £300 
at  the  completion  of  the  contract,  for  his  care  and  attention  in 
directing  and  carrying  on  the  works. 

Notice  of  the  agreement  and  power  of  attorney  was  sent  to  the 
appellants,  together  with  a  letter  from  Nixon,  requesting  them  to 
pay  to  Storm  all  moneys  becoming  due  to  Nixon  on  account  of  the 
contract. 

In  March,  1839.  an  arrangement  was  come  to  by  Nixon  and 
Storm  and  the  appellants,  by  which  a  new  contract  between  the 
appellants  and  them,  as  joint  contractors,  was  substituted  for  the 
first  contract  with  Nixon;  and  he  and  Storm,  by  the  new  contract, 
jointly  and  severally  covenanted  for  the  performance  of  the  con- 
tract;  and  the  appellants  covenanted  to  pay  them  as  well  for  the 
works  then  done  and  not  paid  for,  as  also  for  the  works  to  be  done 
by  them  jointly. 

The  works  were  proceeded  with  under  this  contract,  Nixon  hav- 

1  The  agreement  was  a  separate  mem-  should  not  be  acted  on  as  regarded  the 
orandum,  explanatory  and  restrictive  of  managing  and  conducting  of  the  works 
the  power  of  attorney, —  viz.,  that  the  same     by  Storm  without  Nixon's  consent. 


408  ACCOUNT. 

No.  1. — Taff  Vale  Railway  Co.  v.  Nixon. 

ing  the  management  of  the  working  part,  but  the  appellants  trans- 
acting all  money  matters  connected  with  the  contract  with  Storm. 

In  December,  1840,  a  fiat  in  bankruptcy  was  issued  against 
Storm,  under  which  he  was  declared  a  bankrupt,  and  one  Nicholas 
and  two  others  were  appointed  creditors'  assignees.  There  was 
also  an  official  assignee. 

In  May,  1842,  Nixon  filed  his  bill  against  the  appellants  and 
the  said  assignees,  and  thereby,  after  stating  the  instruments  before 
stated,  he  made  the  following  case,  viz. :  That  notwithstanding 
the  last-mentioned  contract,  the  works  were  carried  on  by  Nixon 
in  the  same  manner  as  before  ;  and  he  continued  to  carry  on  and 
execute  the  same  from  that  time  until  both  the  specified  works 
and  the  extra  works  were  completed  ;  that  in  January,  1841,  all 
the  works  were  completed  pursuant  to  the  contract,  and  the  extra 
works  so  performed  amounted  to  the  sum  of  £9133  26'.  Id.,  accord- 
ing to  the  schedule  of  prices  annexed  to  the  contract,  and  the 
.specified  works  amounted  to  the  sum  of  £7395  15s.,  making  to- 
gether the  sum  of  £16,528  17s.  Id.  ;  that  during  the  progress  of 
the  works,  and  at  the  completion  thereof,  and  before  the  16th  of 
December,  1840,  Nixon  and  Storm  had  received  various  sums  of 
money  on  account  of  the  contract  and  extra  works,  amounting  in 
the  whole  to  £9204  12s.  6d.,  and  no  more,  so  that  there  remained 
a  balance  of  £7324  4s.  Id.  due  from  the  company  to  Nixon;  that 
in  the  month  of  December,  1840,  Nixon  had  reason  to  believe  that 
Storm  was  in  embarrassed  circumstances,  and  he  requested  his 
solicitor  to  give  notice  to  the  company  not  to  pay  Storm  any  move 
money  in  respect  of  the  contract,  and  the  solicitor  wrote  and  sent 
a  letter  to  the  then  secretary  of  the  company,  stating  that  Nixon 
had  consulted  him  upon  the  situation  of  his  affairs  with  Storm 
and  the  company,  and  his  inability  to  obtain  from  tin-  company  an 
account  of  the  moneys  paid  by  them  upon  the  contract  since  the 
11th  of  April  last;  that  the  consideration  for  the  power  of  attor- 
ney from  Nixon  to  Storm  was  Storm's  engagement  to  advance 
Nixon  all  sums  of  money  he  might  require,  and  inasmuch  as  Storm 
had  not  fulfilled  his  part  of  the  engagement,  Nixon  requested  that 
the  company  would  not  pay  him  any  further  sums  on  account  of 
the  contract,  and  also  that  they  would  furnish  forthwith  an 
account  of  the  moneys  paid  by  them  in  respect  of  the  contract 
since  the  11th  of  April,  1840. 

The  bill  next  set  forth  a  letter  sent  to  Nixon  bv  the  solicitors  of 


SECT.  I. — JURISDICTION.  409 

No.  1.  —  Taff  Vale  Railway  Co.  v.  Nixon. 

Storm's  assignees,  dated  in  May,  1841,  applying  for  authority  to 
use  his  name  as  plaintiff  in  an  action  to  be  brought  against  the 
company,  to  recover  balances  due  to  Storm's  estate  in  respect  of 
works,  money,  and  materials  provided  by  him  in  execution  of  the 
contract  and  extra  work  thereon,  up  to  the  time  of  his  bankruptcy  ; 
that  Nixon  declined  to  comply  with  that  request;  that  after  the 
works  were  completed,  he  sent  to  the  company  the  particulars  of 
his  demand  on  them,  and  requested  payment  of  the  balance  of 
£7324  4s.  Id.,  and  the  company  then,  and  ever  since,  admitted  that 
the  whole  of  the  work  amounted  to  the  sum  of  £16,528  17s.  Id.  ; 
and  that  Nixon  alone,  or  he  and  Storm,  were  entitled  to  receive 
that  sum,  but  they  alleged  that  a  much  larger  sum  than  £9204 
12s.  6d.  had  been  paid  by  them  to  Nixon,  and  to  Storm  and  his 
assignees,  and  a  very  small  sum  only  remained  due,  or  that  the 
said  balance,  or  the  greater  part  thereof,  had  been  in  some  manner 
settled  or  accounted  for  with  Storm  or  his  assignees,  whereas  he, 
Nixon,  charged  the  contrary ;  and  that  if  any  further  or  other 
sum  than  £9204  12s.  Qd.,  before  mentioned,  was  paid  by  the  com- 
pany to  Storm,  the  same  was  paid  since  the  company  received  the 
notice  of  December,  1840,  or  in  respect  of  some  other  work  done 
for  the  company,  with  which  Nixon  had  nothing  to  do,  and  which 
was  not  connected  with  the  said  contract. 

The  bill  further  stated,  that,  in  April,  1842,  Nixon's  solicitor 
sent  a  letter  to  the  company's  secretary,  demanding  payment  of 
the  said  balance,  £7324  4s.  Id.,  and  intimating  that,  unless  some 
immediate  arrangement  was  made  for  its  payment,  they  would 
institute  proceedings  for  its  recovery ;  that  the  secretary  to  the 
company  sent  an  answer  by  letter,  which,  after  stating  the  effects 
of  the  first  and  substituted  contracts,  the  power  of  attorney  to 
Storm,  and  his  bankruptcy,  &c,  concluded  by  saying  the  settle- 
ment of  the  accounts  was  to  be  submitted  to  the  arbitration  of 
Mr.  Robert  Stephenson,  and  if  Nixon  had  any  claim  on  the  com- 
pany in  common  with  Storm,  the  whole  affair  would  be  settled  by 
the  arbitrator ;  that  after  receipt  of  this  letter,  Nixon's  solicitors 
inquired,  and  discovered  that  the  company  and  the  assignees  of 
Storm  had  agreed  to  refer  all  the  matters  of  the  said  contracts,  and 
many  questions  of  account  between  the  company  and  Nixon  and 
the  assignees,  and  other  questions  between  the  assignees  and  the 
company,  to  Mr.  Stephenson,  who  was  in  fact  proceeding  to  arbi- 
trate thereupon,  without  the  authority  or  consent  of  Nixon,  and 


410  ACCOUNT. 


No.  1.  —  Taff  Vale  Railway  Co.  v.  Nixon. 


that  it  was  the  intention  of  the  company  to  pay  to  the  assignees 
whatever  balance  the  arbitrator  should  find  due  ;  that  all  the  money 
that  was  due  from  Nixon  to  Storm,  in  respect  of  his  advances,  had 
been  paid  to  him  or  his  assignees. 

The  bill  prayed  that  accounts  might  be  taken  of  all  sums  paid 
by  the  appellants  to  Nixon  and  to  Storm  and  his  assignees,  in  dis- 
charge of  the  said  sums  of  £7395  15s.  and  £9133  2s.  Id  ;  and  of 
all  moneys  advanced  and  properly  laid  out  by  Storm,  on  account  of 
the  works ;  and  that  the  sums  so  received  by  him  and  his  assignees 
misht  be  set  off  against  the  sums  so  laid  out  by  him,  and  the  bal- 
ance  ascertained,  &c  ;  and  that  the  company  might  lie  restrained 
from  paying  any  sums  to  the  said  assignees;  and  that  they,  the 
assignees,  might  be  restrained  from  instituting  any  action  or  other 
proceeding  against  Nixon  in  respect  of  the  matters  aforesaid. 

The  appellants,  by  their  answer,  submitted  that  the  suit  was  im- 
properly framed;  that  they  had  no  connection  or  privity  with  the 
dealings  and  accounts  between  Nixon  and  Storm,  and  ought  not  to 
be  parties  to  any  suit  in  respect  thereof;  that  Nixon  was  not  en- 
titled to  any  account  or  relief  against  the  appellants  in  respect  of 
the  said  contract  and  extra  works,  and  the  mixing  up  of  such 
account  with  the  pecuniary  transactions  between  Nixon  and  Storm 
was  multifarious,  and  they  claimed  the  same  benefit  of  such  objec- 
tion as  if  they  hod  demurred  to  the.  bill ;  and  they  further  said, 
that  they  and  the  assignees  had  agreed  to  refer  all  the  matters  of 
the  contract  to  Mr.  Stephenson,  and  he  had  made  his  award  thereon. 
The  other  defendants  to  the  bill  having  also  put  in  their  answers, 
the  cause  came  to  be  heard  before  the  Vice  Chancellor  of  England, 
who,  in  civiii"  his  judgment,  observed  that  "  he  did  not  see  in  the 
case  anything  to  distinguish  it  from  the  ordinary  case  of  a  person 
making  a  mortgage  of  his  debt;  and,  that  being  so,  it  followed  as 
a  matter  of  right  that  Nixon  ought  to  be  a  party  to  the  settlement 
of  that  sort  of  double  account,  which  would,  first  of  all,  have  to 
ascertain  what  was  due  from  him  to  his  mortgagee,  and  then  what 
was  due  from  his  debtors  to  him,  in  order  that  it  might  be  seen 
what  was  the  true  state  of  the  accounts  between  the  parties."  His 
Honour,  accordingly,  pronounced  a  decree,  referring  it  to  the  Mas- 
ter to  take  the  following  accounts,  viz.  :  — 

An  account  of  all  extra  works  performed  by  Nixon  for  the  Taff 
Yale  Eailway  Company,  under  the  said  contract.  An  account  of 
all  sums  of  money  paid  by  them  to  Nixon  and  to  Storm,  or  either 


SECT.  I. — JURISDICTION.  411 

No.  1.  —  Taff  Vale  Railway  Co.  v.  Nixon. 

of  them,  on  account  of  such  extra  works.  Whether  anything,  and 
what,  then  remained  due  from  the  appellants  in  respect  of  the  said 
■extra  works,  having  regard  to  the  said  payments.  An  account  of 
all  sums  of  money  paid  and  advanced  by  Storm,  to  or  on  account 
of  Nixon,  to  carry  on  the  said  works,  as  well  extra  as  specified.  An 
account  of  the  corn,  hay,  and  all  other  materials  supplied  by 
•Storm,  to  or  on  account  of  Nixon,  in  carrying  on  such  works.  An 
account  of  all  sums  of  money  paid  by  the  company  to  Storm  on 
account  of  the  contract.  And  whether  any,  and  what  sum  of 
money  then  remained  due  from  Nixon  to  the  defendants,  the 
assignees,  in  respect  of  such  advances  and  supplies  of  hay,  corn, 
and  other  materials  made  by  Storm  on  account  of  Nixon,  and  in 
respect  of  interest  on  such  advances  and  moneys  chargeable  for 
such  supplies. 

The  appeal  was  against  that  decree. 

Argued  for  the  appellants:  — 

All  the  matters  in  dispute  in  this  cause  might  have  been  easily 
•disposed  of  at  law,  if  Nixon  had  allowed  his  name  to  be  used  in 
the  action  proposed,  by  the  assignees  of  Storm,  to  be  brought 
against  the  appellants. 

[Lord  Chancellor  (Cottenham).  It  may  be  a  question 
-whether  matters  so  complicated  as  these  accounts  appear  to  be 
were  not  fitter  for  a  suit  in  equity  than  for  an  action.] 

The  state  of  the  case  was  this :  Nixon  and  Storm  contracted 
to  do  certain  works  for  the  company  at  specified  prices,  amounting 
to  £16,000  odd.  They  admitted  that  the  company  paid  £9000 
odd,  and  the  bill  was  filed  for  the  alleged  balance.  Was  not  that 
a  proper  case  for  an  action  to  recover  the  balance?  If  a  suit  in 
chancery  be  held  to  be  a  more  appropriate  course  of  proceeding  in 
this  case,  then  every  builder's  bill  of  charges  may  be  fit  for  a  suit 
in  equity. 

[Lord  Chancellor.  And  properly  so,  if  there  be  complicated 
accounts.  It  is  here  admitted  that  there  are  accounts  between 
Nixon  and  Storm  proper  for  a  suit  in  equity,  and  that  the  money 
to  answer  these  accounts,  when  taken,  is  in  the  hands  of  the  com- 
pany.    Are  they  not  in  the  position  of  stake-holders?] 

The  distinction  between  cases  proper  to  an  action  at  law  and  for 
a  suit  in  equity  is  shown  by  Dhegetoff  v.  London  Assurance  Co., 
Closely,  S3  ;  s.  c.  s.  n.,  Ma  rim  rfe  Ghettoff,  4  Brown  P.  C.  436,  and 
Fall  v.  Chambers,  Moselv,  193. 


412  ACCOUNT. 


No.  1.  —  Taff  Vale  Railway  Co.  v.  Nixon. 


The  Lord  Chancellor  (Lord  Cottenham).  My  Lords,  having 
fully  considered  the  arguments  urged  on  behalf  of  the  appellants 
in  this  case,  it  appears  to  me  to  be  unnecessary  to  hear  the  counsel 
on  the  other  side,  and  that,  according  to  all  the  authorities,  the 
decree  is  fully  justified  by  the  facts  as  they  appeared  before  the  Vice 
Chancellor. 

There  were  some  cases  cited  in  order  to  show  that  there  are 
instances  in  which  a  Court  of  Equity  refuses  to  exercise  any 
jurisdiction  upon  any  matter  of  law.  I  have  no  doubt  that  is  so  ; 
but  the  question  is  whether  this  is  one  of  those  cases. 

Now,  I  think  the  rule  is  very  well  laid  down  by  Lord  Kedesdale 
in  the  case  of  O'Connor  v.  Sjwight,  in  which  he  says  (1  Sch.  & 
Lef.  309) :  "  The  ground  on  which  1  think  that  this  is  a  proper  case 
for  equity,  is,  that  the  account  has  become  so  complicated  that  a 
court  of  law  would  be  incompetent  to  examine  it,  upon  a  trial  at 
Nisi  Prias,  with  all  necessary  accuracy,  and  it  could  appear  only 
from  the  result  of  the  account  that  the  rent  was  not  due.  This 
is  a  principle  on  which  courts  of  equity  constantly  act,  by  taking 
cognisance  of  matters  which,  though  cognisable  at  law,  are  yet 
so  involved  with  a  complex  account  that  it  cannot  properly  be 
taken  at  law;  and  until  the  result  of  the  account,- the  justice  of 
the  case  cannot  appear.  Matter  of  account  may  indeed  be  made- 
the  subject  of  an  action  ;  but  an  account  of  this  sort  is  not  a 
proper  subject  for  this  mode  of  proceeding.  The  old  mode  of 
proceeding  upon  the  writ  of  account  shows  it.  The  only  judg- 
ment was  that  the  party  'should  account,'  and  then  the  account 
was  taken  by  the  auditor.     The  court  never  went  into  it," 

That,  my  Lords,  is  the  rule  applicable  to  questions  of  this  sort ; 
and  it  is  quite  obvious  from  the  rule  so  laid  down,  that  each  case 
must  be  decided  according  to  the  peculiar  circumstances  belong- 
ing to  it.  It  is,  therefore,  nothing  to  the  purpose  to  show  that 
there  are  cases  where  the  court  will  not  entertain  jurisdiction, 
because  it  is  a  matter  of  law.  Each  case  must  be  investigated, 
in  order  to  see  whether  it  comes  within  the  rule  laid  down  as 
that  upon  which  a  Court  of  Equity  exercises  its  jurisdiction. 

A  very  short  reference  to  the  facts  of  this  case  will  show,  be- 
yond all  controversy,  that  this  is  one  of  those  cases.  Here  a 
contract  was  originally  made  by  William  Nixon  with  the  railway 
company.  A  specification  of  the  works  to  be  done  was  appended 
to  the  contract.     That  certainly  is  complicated  enough,  as  indeed 


SECT.   I.  — JURISDICTION.  413 


No   1.  —  Taff  Vale  Railway  Co.  v.  Nixon. 


all  specifications  of  contracts  are.  It  appears  that  lie  wanted 
money  to  carry  into  effect  the  contract  which  he  had  entered  into, 

and  he  then  applied  to  the  other  party,  Storm,  to  assist  him  with 
money,  and  he  assigned  to  him,  as  security  for  repayment  of  the 
money  so  advanced,  the  payments  which  he  might  have  to  receive 
under  his  contract. 

This  went  on  for  some  time,  and  afterwards  a  new  scheme  was 
adopted  for  the  purpose  of  giving  to  the  party  who  so  advanced 
the  money  the  security  of  the  payments  which  might  become  due 
from  the  company  in  respect  of  the  original  contract  with  Nixon. 
To  this  contract  all  three  were  parties.  It  was  made  in  the  shape 
of  a  joint  contract,  by  which  both  the  liabilities  and  the  rights 
arising  out  of  the  former  contract  were  given  up.  The  company 
on  the  one  hand  gave  up  their  claim  against  the  parties,  and  the 
parties  gave  up  their  claim  against  the  company.  The  whole  re- 
sulted in  a  new  contract  between  the  company  on  the  one  hand 
and  these  two  parties  on  the  other,  by  which  they  became  joint 
contractors  for  the  works  which  were  to  be  performed  under 
the  contract  originally  entered  into  by  Nixon  with  the  railway 
company. 

Now,  although  that  is  in  the  form  of  a  joint  contract,  and  there- 
fore gives  to  each  party  a  right,  independently  of  the  other,  to  deal 
with  the  railway  company,  yet  it  is  admitted  on  all  hands  that  it 
was  adopted  for  the  purpose  of  adding  to  the  security  which  Nixon 
was  to  give  for  the  money  to  become  due  under  the  contract.  But 
it  appears  that  the  other  party  was  not  only  himself  a  party  to  the 
joint  contract  with  Nixon,  but  that  he  himself  executed  work  in- 
dependently of  Nixon.  By  this  means  there  was  an  account 
between  him  and  Nixon  and  the  company,  on  account  of  the  con- 
tract in  which  Nixon  was  a  joint  contractor;  and  there  was  also  an 
account  of  payments  that  became  due  in  respect  of  the  contract 
which  he  had  formerly  entered  into.  The  company,  however,  as 
they  admit  in  their  answer,  dealt  with  these  as  payments  on 
account  generally  ;  and  they  say  that  they  are  unable  to  say  whether 
those  payments  are  to  be  referred  to  the  one  account  or  to  the 
other.  The  payments  were  made  by  them  as  the  moneys  became 
due,  without  reference  to  the  particular  works  in  respect  of  which 
they  were  made. 

Then,  not  only  is  the  account  of  this  complicated  nature  between 
Nixon  and  the  company,  but  as  between  the  three  there  is  the 


414  ACCOUNT. 


No.  1.  —  Taff  Vale  Railway  Co.  v.  Nixon. 


duty  of  ascertaining  to  what  contract  and  to  what  works  the  pay- 
ments  made  are  to  be  referred ;  a  question  of  account  utterly 
impossible  to  be  investigated  at  Nisi  Prius,  not  only  from  the 
complicated  nature  of  the  original  account  of  receipts  and  pay- 
ments, but  from  the  mode  in  which  the  appellants,  the  company 
themselves,  have  dealt  with  the  several  contracts,  not  keeping 
distinct  those  payments  in  which  Nixon  was  interested,  but  mak- 
ing them  as  payments  on  account  generally,  some  of  which  might 
be  referred  to  one  account  and  some  to  another,  but  which  they 
have  not  distinguished. 

Under  these  circumstances  Nixon  files  his  bill,  and  asks  for  an 
account  to  be  taken  of  what  is  due  from  this  company  in  respect 
of  the  contract  in  which  he  was  originally  interested ;  and  also 
for  an  account  to  be  taken  as  between  himself  and  the  other  party 
who  had  become  interested  in  the  account  as  security  for  the 
money  advanced. 

Looking  at  the  rule  laid  down  by  Lord  Redesdale,  and  looking 
at  the  facts  of  this  case  as  they  are  developed  in  these  papers,  it 
appears  to  me  clear  that  if  ever  there  was  a  case  which  was  quite 
unfit  for  a  trial  at  law,  and  which  necessarily  became  the  subject 
of  investigation  in  a  Court  of  Equity,  the  facts  of  this  case  come 
within  that  rule;  and  that  is  the  point  for  our  consideration  here. 
The  appellants  say,  "  You  have  no  right  to  direct  this  account  to 
be  taken  in  equity  ;  it  is  entirely  a  matter  of  law.  Let  us  go  to  law 
to  try  the  question  between  us."  I  think  that  the  Vice  Chancellor 
was  entirely  right  in  the  course  that  he  took,  and  that  the  case- 
ought  to  be  investigated  at  equity. 

I  have  therefore  to  move  your  Lordships  that  the  decree  ap- 
pealed from  be  affirmed. 

Lord  Brougham.  I  have  no  desire  to  take  any  part  iu  this  de- 
liberation, for  this  reason,  that  I  did  not  hear  the  whole  of  the 
arguments  for  the  appellants  ;  but  what  I  did  hear,  and  my  exami- 
nation of  the  printed  cases,  have  led  me  to  the  conclusion  at  which 
my  noble  and  learned  friend  has  arrived,  that  this  is  clearly  a  case 
for  a  court  of  equity,  and  one  that  is  not  fit  to  be  sent  to  trial  at 
law.  At  the  same  time,  as  T  did  not  take  any  active  part  during 
the  argument,  I  shall  decline  entering  further  upon  the  case  except 
to  say  that  I  entirely  concur,  as  far  as  I  have  heard  the  case,  lit 
the  observations  which  my  noble,  and  learned  friend  has  made. 

Lord  Campbell.     My  Lords,  having  heard  the  whole  of  the  argur- 


SECT.  I.  —  JURISDICTION.  4 1  5 

No.  1.  —  Taff  Vale  Railway  Co.  v.  Nixon. 

ment  for  the  appellants  in  this  case,  and  having  considered  it  very 
carefully,  I  have  come  to  a  clear  conclusion  that  this  decree  ought 
to  be  affirmed.  I  have  great  satisfaction  in  doing  so,  because  if 
there  really  had  been  any  technical  rule  whereby  a  bill  in  equity 
could  not  have  been  filed  in  this  case,  it  would  have  amounted  to 
a  very  great  defect.  For  if  an  action  at  law  were  the  only  remedy 
in  such  a  case,  it  really  would  amount,  in  my  opinion,  to  a  denial 
of  justice. 

I  do  not  proceed  merely  upon  the  ground  which  is  stated  in  the 
case  as  having  been  taken  by  his  Honour  the  Vice  Chancellor;  I 
proceed  upon  this  ground,  that  here  is  a  complicated  account  that 
could  not  by  possibility  be  taken  by  a  jury.  The  facts  of  the  case, 
as  stated  by  my  noble  and  learned  friend  on  the  Woolsack,  very 
clearly  show  that  it  would  be  a  mere  mockery  to  bring  such  an 
action  before  a  jury.  What  would  be  done  if  such  an  action  were 
brought  at  Nisi  Print  ?  I  know  that  within  five  minutes  from 
the  opening  of  the  case  by  the  leading  counsel  for  the  plaintiffs, 
the  Judge  would  say,  "If  we  sit  here  for  a  fortnight  we  cannot  try 
this  sort  of  case,  and  therefore  it  is  indispensably  necessary  for  the 
sake  of  justice  —  not  to  save  us  from  the  trouble  of  trying  the  case, 
which  we  are  perfectly  willing  to  take,  but  for  the  sake  of  jus- 
tice—  that  there  should  be  a  reference  to  an  arbitrator  who  will 
take  accounts  between  the  parties." 

My  Lords,  in  ninety-nine  cases  out  of  a  hundred,  that  recommen- 
dation would  at  once  be  acceded  to.  Sometimes  there  is  a  wron"- 
headed  client,  who  is  fool  enough  to  resist  such  a  recommendation, 
and  to  whom,  according  to  a  well-known  saying  that  we  have 
in  Westminster  Hall,  it  is  necessary  to  use  "strong  language"'  to. 
induce  him  to  listen  to  the  recommendation  of  my  Lord  the  Judge. 

But,  my  Lords,  it  is  quite  clear  that  trial  by  jury  never  was 
meant  for  such  a  case,  and  it  is  wholly  incapable  of  doing  justice 
in  such  a  case.  Although  a  demand  may  resolve  itself  into  a  legal 
demand,  still  if  there  is  such  a  complication  of  accounts  that  it  is 
not  a  fit  case  for  a  trial  at  law,  then  according  to  the  rule  laid 
down  by  that  most  eminent  judge,  Lord  Eedesdale,  a  bill  in 
equity  is  the  remedy.  That,  if  properly  pursued,  will  be  effectual, 
because  that  is  followed  by  a  reference  to  the  Master,  and  the 
Master  takes  the  account,  and  he  does  justice  between  the  parties ; 
he  at  once  doing  properly  what,  after  great  expense  incurred  by  an 
action  at  law  in  bringing  the  case  before  a  jury,  would  at  last  have 
to  be  attempted  by  arbitration. 


416  ACCOUNT. 

No.  1.  —  Taff  Vale  Railway  Co.  v.  Nixon. 

My  Lords,  I  may  be  allowed  at  this  point  to  say  that  I  think 
some  important  improvement  might  be  made  even  with  reference 
to  this  remedy  of  a  bill  in  equity  in  a  case  of  this  sort;  because 
1  think  it  is  an  enormous  hardship  upon  parties  coining  into  the 
Master's  Office,  taking  out  warrant  after  warrant  for  months  and 
years,  and  sitting  an  hour  a  day  in  a  very  complicated  account. 
But  if  there  were  to  be  means  taken,  which  I  hope  we  may  see 
taken  in  cases  of  this  sort,  first  of  accelerating  the  proceedings  for 
bringing  it  into  the  Master's  Office,  and  then,  when  it  is  in  the 
Master's  Office,  going  on  continuously  until  the  account  is  taken, 
speedy  and  ample  justice  would  be  done.  This  decision,  to  which 
your  Lordships  are  prepared  to  come,  certainly  will  tend  to  facili- 
tate these  further  improvements  ;  and  I  only  hope  that  after  it 
is  fully  established  that  a  bill  in  equity  will  lie  in  cases  of  this 
sort,  the  practice  of  bringing  an  action  at  law  and  incurring  enor- 
mous expense,  and  then  referring  the  matter  to  arbitration,  will 
fall  into  disuse,  and  that  at  once,  in  a  case  of  this  sort,  the  remedy 
which  is  afforded  by  a  bill  in  equity  will  be  resorted  to,  and  that 
then,  by  some  improvement  in  the  mode  of  taking  the  account  in 
the  Master's  Office,  speedy  and  effectual  justice  may  be  done. 

Under  the  circumstances  of  this  case,  it  is  quite  clear  that  the 
account  is  of  a  very  complicated  nature,  which  could  not  by  pos- 
sibility be  taken  before  a  jury  ;  and  therefore  I  am  very  glad  to  find 
that  according  to  the  authorities  and  the  established  doctrine  of  a 
Court  of  Equity,  a  bill  in  equity  may  be  brought  in  such  a  case,  and 
on  this  ground  T  entirely  concur  in  the  motion  of  my  noble  and 
learned  friend,  that  the  decree  of  the  Vice  Chancellor  be  affirmed. 

Lord  Brougham.  My  Lords,  I  rise  only  to  mention  a  circum- 
stance which  my  noble  and  learned  friend  reminds  me  of,  that  it 
was  formerly  so  much  a  matter  of  course,  when  cases  of  this  sort 
came  before  us  at  Nisi  Prim  upon  the  Northern  Circuit,  to  refer 
them  to  arbitration,  tlwt  we  invented  a  phrase  for  it  at  consulta- 
tion, the  meaning  of  which  was,  that  it  could  not  be  tried,  and 
that  the  leading  counsel  for  the  plaintiff  would,  what  is  commonly 
called,  "open  a  reference."  Now,  the  coin\se  ought  to  be  a  bill  in 
equity,  —  that  is  clearly  the  best  remedy.  And  with  my  noble  and 
learned  friend  I  entirely  concur,  in  the  hope  that  we  may  live  to 
see  such  an  improvement  in  the  practice  as  would  eradicate  all 
the  abuse  and  stop  all  complaints  against  the  Master's  Office,  and 
almost   against  the   Court    of   Chancery,  —  that  of  parties    being 


SECT.  I. — JURISDICTION.  417 

No.  1.  —  Taff  Vale  Railway  Co.  v.  Nixon.  —  Notes. 

obliged  to  go  on,  not  de  die  in  diem  merely,  but  de  hora  in  horam, 
as  they  do  at  Nisi  Prius  after  due  notice. 

Lord  Campbell.  I  may  remind  your  Lordships  that  the  inade- 
quacy of  a  jury  to  try  such  a  case  was  felt  so  strongly  by  the  Com- 
mon Law  Commissioners,  appointed  some  years  ago,  that,  to  meet 
the  case  of  an  obstinate  party  who  stood  out  against  the  recom- 
mendation of  a  reference,  they  recommended  that  an  act  of  Parlia- 
ment should  be  passed  giving  the  Judge  power  to  force  a  reference  ; 
and  such  a  bill  was  brought  in,  but  it  was  opposed  by  high  au- 
thority. There  was,  however,  a  great  improvement  made  in  the 
most  preposterous  rule  of  the  common  law  as  to  revoking  the 
appointment  of  an  arbitrator.  That  improvement  was  introduced, 
but  it  was  thought  that  it  would  be  improper  to  give  the  power  of 
compulsory  reference.  The  bill,  therefore,  after  a  good  deal  of  de- 
liberation in  both  Houses  of  Parliament,  was  dropped.  1  only 
mention  that,  in  order  to  show  the  opinion  that  was  then  enter- 
tained of  the  extreme  impossibility  of  a  jury  trying  a  case  of  this 
description.  But  if  it  could  be  taken  speedily  to  the  Master's 
Office,  and  the  Master  were  then  to  sit  continuously  to  dispose  of 
it,  I  am  sure  that  it  would  be  a  very  great  improvement  in  the 
administration  of  justice  in  such  cases. 

The  decree  was  then  affirmed,  with  costs. 

ENGLISH   NOTES. 

Questions  as  to  the  exclusive  jurisdiction  of  courts  of  law  and  equity 
are,  under  the  judicature  Acts,  obsolete  for  English  purposes.  The 
power  of  compulsory  reference  in  questions  of  account,  suggested  by  the 
above  remarks  of  Lord  Campbell,  was  first  introduced  by  legislative 
enactment  by  the  C.  L.  P.  Act  of  1854,  s.  3.  It  was  afterwards  sub- 
stantially embodied  in  the  Rules  of  Court  under  the  Judicature  Acts; 
and  is  now  contained,  in  a  more  general  and  simple  form,  in  the  Arbi- 
tration Act.  1889,  s.  14.      (See  notes  to  "Arbitration,"  ISTo.  3,  post.) 

In  the  earlier  case  of  the  Corporation  of  Carlisle  v.  Wilson  (1807), 
13  Ves.  276,  the  question  was  argued  on  demurrer  whether  a  bill  in 
Chancery  would  lie  by  the  corporation  against  a  stage-coach  proprietor 
for  an  account  of  tolls.  The  Lord  Chancellor  (Lord  Erskine)  over- 
ruled the  demurrer,  and  laid  down  the  principle  that  a  court  of  equity  has 
concurrent  jurisdiction  with  a  court  of  law  on  the  subject  of  accounts; 
and  will  decree  an  account  in  cases  where  an  action  at  law  would  not 
be  tried  without  great  difficulty,  and  where  the  verdict  could  not  from 
the  nature  of  the  case  be  satisfactory. 
vol.  i.  —  27 


418  ACCOUNT. 


No.  1.  —  Taff  Vale  Railway  Co.  v.  Nixon.  —  Notes. 


AMERICAN  NOTES. 

The  doctrine  of  the  principal  case  is  of  comparatively  little  practical  import- 
ance in  this  country,  because  in  most  States  the  distinction  between  courts  of 
law  and  of  equity  has  been  abolished,  and  under  the  Code  system  long 
accounts  are  always  sent  to  a  referee  for  trial  and  determination.  The  prin- 
cipal case  is  cited  by  the  two  latest  text-writers  on  equity  jurisprudence  in 
this  country,  Messrs.  Pomeroy  and  Beach,  and  both  of  them  recognise  its 
applicability  in  those  States  where  separate  courts  of  equity  still  exist,  or 
where  there  is  a  distinct  course  of  practice  in  the  same  court  in  respect 
to  equity  jurisdiction.  Mr.  Pomeroy  (3  Eq.  Jur.  p.  2194),  cites  Mitchell  v. 
Gt.  Works,  fyc.  Co.,  2  Story  (U.  S.  Circ),  648;  Governor  v.  McEwen,  5 
Humphrey  (Tennessee),  241  ;  Watt  v.  Conger,  13  Smedes  &  Marshall  (Missis- 
sippi), 412;  Kirkman  v.  Vanlier,  7  Alabama,  217;  Printup  v.  Mitchell,  17 
Georgia,  558 ;  63  Am.  Dec.  258 ;  Wilson  v.  Riddle,  48  Georgia,  609 ;  La/ever 
v.  Billmyer,  5  West  Virginia,  33;  Blood  v.  Blood,  110  Massachusetts,  545; 
Farmers'  8fc.  Bank  v.  Polk,  1  Del.  Ch.  167;  Trapnall  v.  Hill,  31  Arkansas,  345 ; 
Nesbil  v.  St.  Patrick's  Church,  9  New  Jersey  Eq.  76.  Mr.  Beach  says  :  "  The 
basis  and  extent  of  the  equitable  jurisdiction  over  matters  of  account  appear 
to  have  been  seldom  considered  in  the  American  courts,  but  often  discussed  in 
the  English  authorities.  These  latter  are  not  always  harmonious."  "The 
necessity  for  a  resort  to  equity  for  the  reason  in  question,"  he  continues,  "is 
now,  in  many  of  the  States,  and  in  England,  very  slight,  if  it  can  be  said  to 
exist  at  all,"  &c.  He  adds  the  following  citations  :  Warner  v.  McMullin,  131 
Peun.  St.  370  ;  Fair  v.  Stickney  Farm  Co.,  35  Minnesota,  382  ;  Parkersburg  v. 
Brown,  106  United  States,  487  ;  Hathaway  v.  Hag'an,  59  Vermont,  75 ;  Mc- 
Ciilln  v.  Bcadleston,  17  Rhode  Island,  20.  To  these  may  be  added  Smiley  v. 
Bell,  1  Martin  &  Yerger  (Tennessee),  378;  17  Am.  Dec.  813. 

The  principal  case  is  cited  in  Uhlman  v.  N.  Y.  Life  Ins.  Co.,  109  New  York, 
421 ;  4  Am.  St.  Rep.  482,  in  which  the  court  hold  that  it  is  still  discretionary 
with  the  court  whether  to  take  jurisdiction  of  an  action  for  an  accounting  for 
the  sole  reason  that  the  account  is  complicated,  observing :  "Judges  in  the 
English  equity  courts  have  been  somewhat  slow  to  maintain  jurisdiction  in  a 
case  where  the  ground  thereof  was  solely  that  the  account  was  complicated ; 
and  although  there  are  very  many  cases  in  which  the  statement  has  been  made 
that  equity  would  sometimes  take  jurisdiction  on  that  account,  yet  in  most  of 
them  it  is  seen  that  there  were  added  to  that  other  grounds  making  it  proper 
for  equity  to  assume  cognisance  of  the  cases.  However  it  may  be,  it  has  at 
least  been  stated  that  whether  or  not  the  court  would  take  jurisdiction  upon 
the  sole  ground  of  the  account  being  complicated,  was  a  matter  largely  within 
the  discretion  of  the  court.  See  South~Easte?-n  By.  Co.  v.  Martin,  2  Phill.  Ch. 
758 ;  also  Phillips  v.  Phillips,  9  Hare,  471 ;  and  Bliss  v.  S?nith,  34  Beav.  508. 
We  are  not  inclined  to  enlarge  the  principle,  or  to  hold  that  in  all  cases  the 
mere  fact  of  a  complicated  account  being  at  issue  will  oblige  the  court  to  take 
jurisdiction."  This  is  based  on  the  ground,  stated  in  Marvin  v.  Brooks,  94 
New  York,  71,  "  that  the  plaintiff  has  now  all  the  facilities  for  examining  a 
complicated  account  in  an  action  at  law  that  he  would  have  in  equity." 


SECT.  I. — JURISDICTION.  419 


No.  2.  —  Smith  v.  Leveaux.  —  Rule. 


No.   2. —  SMITH   v.   LEVEAUX. 

(chancery,  l.  j.  j.  1863.) 

RULE. 

A  Court  of  Equity  will  not  entertain  a  bill  for  an  account 
by  a  commercial  agent  for  his  commission,  where  adequate 
relief  can  be  obtained  in  a  Court  of  Law. 

Smith  v.  Leveaux. 

33  L.  J.  Ch.  167. 

This  was  an  appeal,  by  the  defendants,  the  Hungarian  Vineyard 
Company,  a  trade  firm  of  wine-merchants,  carrying  on  business  at 
Liverpool  under  that  title,  against  a  decree  of  Vice  Chancellor 
Wood,  decreeing  an  account  of  what  was  due  to  the  plaintiff  for 
commission  on  all  orders  for  wines  and  brandies  obtained  by  him, 
or  through  his  introduction. 

The  plaintiff  was  a  commercial  traveller,  and  for  some  time  pre- 
viously to  the  year  1860  he  had  been  employed  by  the  defendants 
as  their  agent  for  a  considerable  district  in  England,  upon  certain 
terms,  which  were  stated  in  the  bill  to  have  been,  that  the  plain- 
tiff should  receive  a  commission  of  £7  10s.  per  cent,  upon  all  orders 
obtained  by  him  through  his  connexions  and  friends,  and  executed 
by  the  defendants  ;  and  although  the  evidence  went  to  show  that 
the  original  terms  involved  the  payment  of  a  higher  rate  of  com- 
mission, it  was  clear  that  in  January,  1860,  the  defendant,  Mr. 
Edward  Leveaux,  in  a  letter  to  the  plaintiff,  informed  him  that  his 
firm  could  not  continue  to  pay  so  high  a  commission,  and  offered 
him  the  £7  10s.  per  cent,  already  mentioned.  But  it  will  be  suffi- 
cient to  state  that  on  the  23rd  of  July,  1860  the  defendant,  Edward 
Leveaux,  wrote  a  letter  to  the  plaintiff,  which  contained  the  fol- 
lowing passage : — 

"  Now,  as  regards  the  commission,  I  am  most  anxious  that  it 
should  be  as  remunerative  as  possible  with  the  successful  working 
out  of  the  business.  To  keep  at  our  present  prices  for  brandy, 
port,  sherry,  &c,  I  find  it  will  not  suit  to  allow  a  higher  commis- 
sion than  the  following,  and  particularly  ns  I  have  had  to  give  up 
a  highly  lucrative  portion  <>e  «o  that  I  might  have 


420  ACCOUNT. 

No.  2.  —  Smith  v.  Leveaux. 


time  to  travel  entirely  in  the  Hungarian  wine  trade.  On  all  busi- 
ness done  by  yourself,  either  in  London  or -your  district,  £7  10s. 
per  cent.,  where  our  full  prices  and  shipping'  arrangements  are 
adhered  to,  and  of  course  only  on  good  debts,  and  an  allowance  of 
£3  10s.  per  cent,  on  all  orders  received  from  your  friends,  first 
introduced  by  you,  so  long  as  you  continue  to  exert  yourself  in 
the  working  out  of  the  business,  and  are  engaged  in  the  selling  of 
our  Hungarian  wines  and  spirits;  but  of  course  we  could  not  bind 
ourselves  in  perpetuity  to  such  an  allowance,  as  you  might  cease 
to  represent  those  interests,  and  then,  of  course,  the  allowance 
would  cease  at  the  same  time.  Such  a  contingency,  I  hope,  how- 
ever, is  not  likely  to  occur." 

These  terms  were  accepted  by  the  plaintiff,  in  a  letter  written 
to  the  defendants,  dated  the  1st  of  April,  I860  ;  but  very  soon  after- 
wards the  plaintiff  became  discontented  with  the  extent  of  the 
district  assigned  to  him,  and  required  an  extension  of  it.  This  was 
refused  by  the  defendants,  and  the  plaintiff  wrote  declining  the 
agency  as  from  the  date  of  his  letter.  The  plaintiff  and  Mr. 
Edward  Leveaux  then  met,  and  an  arrangement  was  made  to  con- 
tinue the  agency  on  the  old  terms,  but  with  the  addition  that  the 
plaintiff  should  also  receive  £3  10s.  per  cent,  commission  on  orders 
obtained  from  such  of  his  friends  and  connexions  as  were  not 
within  the  district  assigned  to  him. 

The  parties  subsequently  disagreed  on  the  accounts,  and  the 
plaintiff  ceased  to  act  as  agent  for  the  defendants  in.  September, 
1861  ;  and  in  the  following  year  he  filed  this  bill  for  an  account  of 
what  was  due  to  him,  and  for  payment. 

These  statements  were,  in  substance,  admitted  to  be  accurate  ; 
but  the  defendants  did  not  demur  to  the  bill  (an  omission  which 
they  accounted  for  by  the  circumstance  that  the  bill  and  instruc- 
tions were  not  laid  before  counsel  within  the  time  limited  for  de- 
murring alone,  —  namely,  within  twelve  days  after  appearance),  but 
the  answer  contained  the  following  submission  on  their  behalf: 
"  We  submit  that  this  bill  should  not  have  been  filed,  and  that  the 
.  plaintiffs  remedy  (if  any)  is  by  an  action  at  law." 

Voluminous  evidence  was  gone  into  in  the  suit,  and  the  defen- 
dants had  filed  a  concise  statement  and  interrogatories,  upon 
which  the  plaintiff  himself  was  examined,  and  the  cause  came  on 
for  hearing  before  Vice  Chancellor  Wood,  in  June  last,  when  his 
Honour,  in   pronouncing   the  decree  already  mentioned,  thus  ex- 


SECT.  I.  —  JURISDICTION.  421 

No.  2.  —  Smith  v.  Leveaux. 

pressed  himself:  "  I  am  anxious  to  give  my  reasons  for  not  acced- 
ing to  Mr.  Jessel's  view  on  the  question  of  law.  I  should  be  most 
unwilling  to  do  anything  which  would  have  the  appearance  or 
effect  of  throwing  any  doubt  upon  the  decisions  in  Dinwiddie  v. 
Bailey,  6  Yes.  136,  and  Phillips  v.  Phillips,  9  Hare,  471  ;  S.  C.  22 
Law  J.  Rep.  (N.  s.)  Chanc.  141,  that,  when  the  receipts  and  pay- 
ments are  wholly  on  one  side,  this  court  will  not  take  the  account 
at  the  suit  of  an  agent;  that  is  to  say,  where  it  consists  of  receipts 
by  A.  on  account  of  B.,  and  payments  made  by  A.  on  account  of  B. 
When  the  receipts  and  payments  are  wholly  on  one  side,  you  can- 
not have  an  account;  but  where  each  side  has  been  paying  and 
receiving,  having  mutual  confidence  in  each  other,  then  the  account 
arises.  Mr.  Jessel's  argument  would  have  been  perfectly  right  if 
it  had  been  the  case  of  a  simple  commercial  traveller,  if  the  defen- 
dants had  not  entered  into  a  contract  on  their  part  that  for  every- 
thing they  sold  upon  the  plaintiff's  introduction,  and  which  of 
course  he  could  know  nothing  of,  they  would  pay  him  a  commis- 
sion of  £3  106*.  per  cent.  ;  therefore,  the  whole  thing,  as  I  appre- 
hend, arises,  and  the  defendants  are  brought  here,  and  the  account 
of  that  commission  must  be  taken."  The  decree  was  therefore  to 
the  effect  stated  above,  and  the  defendants  appealed  against  the 
whole  of  it. 

In  the  course  of  the  argument  the  following  authorities  were 
referred  to : — 

The  South-Eastern  Railway  Company  v.  Martin,  2  Ph.  758  ;  s.  c. 
1  Hall  &  Tw.  69;  IS  Law  J.  Rep.  (x.  s.)  Chanc.  103;  Phillips  v. 
Phillips,  9  Hare,  471  ;  s.  c.  22  Law  J.  Rep.  (n.  s.)  Chanc.  141  ;  Pad- 
wick  v.  Stanley,  9  Hare,  627  ;  s.  c.  22  Law  J.  Rep.  (n.  s.)  Chanc. 
1S4;  Foley  v.  Hill,  2  H.  L.  Cas.  28;  Padwick  v.  Hurst,  18  Beav. 
575  ;  s.  c.  23  Law  J.  Rep.  (n.  s.)  Chanc.  657. 

Mr.  Willcock  having  been  heard  in  reply, — 

Lord  Justice  Knight  Bruce  said,  that  it  appeared  to  him  that 
the  present  bill  stated  a  case  for  an  action  at  law,  but  not  such  a 
case  as  would  entitle  the  plaintiff  to  file  a  bill  in  equity.  It  did 
not  fall  within  those  principles  as  to  account  and  agency  upon 
which,  when  there  was  jurisdiction  both  in  courts  of  law  and  of 
equity,  that  joint  jurisdiction  was  based.  He  was  unable,  with 
great  deference  to  the  learned  Vice  Chancellor,  to  come  to  the 
same  conclusion  as  that  at  which  his  Honour  had  arrived,  for  it 
appeared  to  him  to  be  solely  a  case  of  legal  right ;  and,  considering 


422  ACCOUNT. 


No.  2.  —  Smith  v.  Leveaux. 


the  established  rules  of  this  court,  there  was  neither  account  nor 
agency  within  the  meaning  of  those  rules.  The  bill  might  have 
been  demurred  to,  and  it  must  be  now  dismissed. 

Lord  Justice  Turner  added,  that  he  should  have  hesitated  to 
pronounce  an  opinion  at  variance  with  that  of  Vice  Chancellor 
Wood,  immediately  and  without  further  deliberation,  if  the  sub- 
ject had  not  been  recently  under  his  consideration  ;  but  as  he  had 
lately  given  full  consideration  to  the  subject,  he  thought  that  no 
benefit  would  arise  from  deferring  his  judgment  in  the  present  case. 
It  had  not  been  contended  by  the  plaintiff  that  there  would  be 
any  possible  right  in  him  to  file  a  bill  for  an  account,  unless  on 
the  ground  that  it  was  the  duty  of  the  defendants  to  keep  an 
account  of  their  receipts,  so  far  at  least  as  concerned  that  portion 
of  their  business  in  respect  of  which  the  plaintiff  was  entitled  to 
a  commission,  —  namely,  on  the  orders  received  by  the  defendants 
from  friends  and  connexions  of  the  plaintiff,  hut,  in  the  first 
place,  the  bill  contained  no  allegation  whatever  that  there  was 
any  contract  by  the  defendants,  or  that  it  was  any  part  of  their 
duty,  to  keep  any  such  account ;  in  the  next  place,  it  was  not 
every  contract  which  of  necessity  created  such  a  trust  as  would 
justify  this  court  in  interfering ;  and  in  the  third  place,  there 
appeared  in  this  to  be  nothing  more  than  a  simple  contract  by 
the  defendants  to  pay  the  plaintiff  a  commission  upon  the  orders 
to  be  obtained  from  his  friends  and  connexions ;  and  if  the  plaintiff 
could  maintain  a  bill  under  such  circumstances,  it  was  impossible 
to  say  where  the  jurisdiction  of  this  court  in  similar  cases  would 
cease.  For  instance,  a  banker  not  only  received  money  paid  in  by 
his  customers,  but  he  also  applied  money  which  he  received  from 
other  sources  on  their  accounts ;  and  upon  the  contention  of  the 
plaintiff,  if  this  bill  were  right,  every  customer  of  every  banker 
might  file  a  bill  to  have  the  accounts  taken  between  himself  and 
the  banker.  This  was  quite  inconsistent  with  the  principles  laid 
down  in  the  case  referred  to  in  the  argument  before  the  House  of 
Lords  in  Foley  v.  Hill.  It  was  clear  that  in  the  present  case  there 
were  no  mutual  accounts  between  the  parties ;  and  although  it 
would  not  be  denied  that  complexity  of  accounts  had  in  some 
cases  been  held  to  justify  a  suit  in  this  court,  there  was  no  such 
allegation  of  complexity  in  the  bill  in  this  suit,  nor  was  there  any 
allegation  that  there  were  mutual  accounts.  With  the  greatest 
respect  for  his  Honour,  he  was  of  opinion  that  the  bill  must  be 


SECT.  I. — JURISDICTION.  423 

No.  2.  —  Smith  v.  Leveaux.  —  Notes. 

dismissed,  and  with  costs;  but  there  would  be  no  costs  of  the 
appeal.  The  bill  will  be  dismissed  with  costs,  without  prejudice 
to  any  action  at  law;  no  costs  of  the  appeal,  and  the  deposit  to  be 
returned  to  the  defendants. 

ENGLISH   NOTES. 

It  should  be  noted  that  in  this  case  the  Lord  Justices  reversed  the 
judgment  of  V.  C.  "Wood,  and  that  the  decision  as  reported  in  1  Hem- 
ming &  Miller,  p.  123,  thus  stands  reversed. 

Hemming  v.  Pugh  (1863),  4  Gift'.  456,  was  a  case  which  came  up 
on  demurrer  before  V.  C  Stuart,  on  Nov.  4th,  1863, —  a  few  days 
before  the  decision  of  the  Lord  Justices  in  the  principal  case  (which 
was  on  Nov.  9th).  The  bill  claimed  an  account,  and  alleged  that  the 
defendant  had  received  moneys  on  behalf  of  the  plaintiff,  of  which  the 
amounts  and  particulars  were  unknown  to  the  plaintiff.  The  Vice 
Chancellor,  notwithstanding  the  decision  of  V.  C.  Wood  in  Smith  v. 
Leveaux  being  cited,  allowed  the  demurrer.  The  mere  averment  of 
receipt  of  money  hy  an  agent,  although  accompanied  by  a  hald  state- 
ment that  without  the  evidence  of  the  defendant  and  the  production  of 
the  books  the  plaintiff  was  unable  to  obtain  an  account,  was  not 
enough.  It  did  not  appear  why  the  plaintiff  could  not  obtain  that  evi- 
dence. The  Vice  Chancellor,  however,  stated  that  his  decision  was  not 
merely  on  the  ground  that  the  receipts  and  payments  were  wholly  on 
one  side.  "There  are  many  cases,"  he  said,  "where  the  receipts  and 
payments  are  wholly  on  one  side,  in  which,  however,  this  court  has 
exercised  its  jurisdiction.  In  the  case  of  a  steward  or  land-agent, 
the  receipts  and  payments  are  almost  necessarily  on  one  side,  — 
that  is,  no  mutual  payments  and  receipts.  Yet  that  is  a  case  in 
which  this  court  from  the  most  ancient  times  (and  more  recently 
daring  the  times  of  Lord  Rosslyn,  Lord  Thurlow,  and  Lord  Eldon) 
has  exercised  this  jurisdiction.  That  jurisdiction  still  remains;  and 
wherever  an  agency  partakes  of  a  fiduciary  character,  this  court  has 
jurisdiction,  and  will  direct  an  account,  although  the  receipts  and  pay- 
ments are  all  on  one  side,  and  there  are  no  mutual  payments  between 
the  parries." 

Most  of  the  earlier  authorities  will  be  found  cited  in  the  arguments 
before  the  House  of  Lords  in  Foley  v.  Hill  (1848),  2  H.  L.  C.  28. 
There  a  bill  in  Chancery  had  been  brought  \>y  a  customer  against  a 
banker  for  an  account,  the  transactions  being  not  complicated,  but  con- 
sisting of  a  few  items  and  a  calculation  of  interest.  The  House  of 
Lords,  affirming  the  decision  of  Lord  Lyndhurst,  the  former  Lord 
Chancellor,  held  that  the  bill  was  rightly  dismissed.      The  Lokd  Chan 


424  ACCOUNT. 


No.  2.  — ■  Smith  v.  Leveaux.  —  Notes. 


CELlor  (Lord  Cottenham),  in  advising  the  House,,  drew  the  distinction 
between  such  a  case  and  the  case  of  an  agent  dealing  with  what  is  the 
property  of  the  principal.  u  As  between  principal  and  factor,"  he  says, 
"there  is  no  question  whatever  that  that  description  of  case  which 
alone  has  been  referred  to  in  the  argument  in  support  of  the  jurisdic- 
tion has  always  been  held  to  be  within  the  jurisdiction  of  a  Court  of 
Equity,  because  the  party  partakes  of  the  character  of  a  trustee.  .  .  . 
So  it  is  with  regard  to  an  agent  dealing  with  any  property:  he  obtains 
no  interest  himself  in  the  subject-matter  beyond  his  remuneration;  he 
is  dealing  throughout  for  another,  and  though  he  is  not  a  trustee  accord- 
ing to  the  strict  technical  meaning  of  the  word,  he  is  quasi  trustee  for 
that  particular  transaction  for  which  he  is  engaged;  and,  therefore,  in 
these  cases  the  Courts  of  Equity  have  assumed  jurisdiction." 

Dinwiddle  v.  Bailey  (1801),  6  Ves.  136,  referred  to  by  the  Vice 
Chancellor  in  the  principal  case  (p.  421,  supra),  was  a  bill  by  an  insur- 
ance broker  to  make  good  a  claim  in  the  nature  of  a  set-off  against  the 
principal.  The  demurrer  was  allowed.  It  was  stated  by  the  counsel 
in  support  of  the  bill,  after  the  cause  had  stood  over  for  the  purpose  of 
searching  precedents,  that  there  were  numerous  cases  of  accounts  sought 
by  a  principal  against  a  factor;  and  this  is  apparently  confirmed  by 
Lord  Cottenham's  judgment  in  Foley  v  Hill.  The  other  case,  PJiil- 
lips  v.  Phillips  (1852),  9  Hare,  471 ;  22  L.  J.  Ch.  141,  referred  to  by 
V.  C.  Wood  (p.  421,  supra),  was  a  simple  case  of  debtor  and  creditor 
account.  It  was  alleged  that  amongst  the  moneys  received  were  moneys 
arising  from  the  sale  of  certain  railway  shares  belonging  to  the  plaintiff 
and  sold  by  them  on  his  account.  Turner,  V.  C,  allowed  a  demurrer 
for  want  of  equity. 

AMERICAN   NOTES. 

The  principal  case  is  cited,  with  Pad  wick  v.  Startle)/,  9  Hare,  627,  by  Mr. 
Pomeroy  (3  Equity  Jurisprudence,  p.  473),  who  observes  :  "  While  the  rules 
are  thus  settled  in  favour  of  a  principal,  it  does  not  follow  that  the  reverse  is 
true,  and  that  an  agent  may  come  into  equity  for  an  accounting  against  his 
principal,  since  generally  there  is  no  trust  or  confidence  reposed  in  the  latter, 
and  no  duty  on  his  part  to  account." 

But  where  an  agent's  salary  depends  upon  the  profits  made  by  his  employer, 
an  accounting  may  be  had.  Buel  v.  Selz,  5  Illinois  Appeals,  116;  Bentley  v. 
Harris,  10  Rhode  Island,  434;  14  Am.  Rep.  695,  citing  Harrington  v.  Church- 
ward, 8  W.  R.  302 ;  6  J  n.  s.  576  ;  see  also  Garr  v.  Redman,  6  California,  574  ; 
Hallett  v.  Cumston,  110  Massachusetts,  32. 


SECT.  II. STATED  ACCOUNT.  425 


No.  3.  —  Laycock  v.  Pickles.  —  Rule. 


Section   II.  —  WJiat  may  be  recovered  on  a  Staled  Account. 

No.  3. —  LAYCOCK   v.   PICKLES. 
(q.  b.  1863.) 

RULE. 

Where  several  items  of  claim  are  brought  into  account  on 
either  side,  and,  being  set  one  against  another,  a  balance 
is  struck  and  agreed  to  be  due,  —  although  the  transaction 
is  merely  verbal  and  some  of  the  items  have  been  merely 
equitable  and  unliquidated  claims,  —  the  balance  maybe 
sued  for  as  money  due  on  account  stated.  The  essence  of 
the  matter  is  that  in  consideration  of  the  discharge  of 
items  on  either  side,  the  balance  is  agreed  to  be  due. 

Layr.ock  v.  Pickles. 

33  L.  J.,  Q.  B.  43 ;   (s.  c.  4  Best  and  Smith,  497). 

Upon  an  appeal  against  a  judgment  of  the  Judge  of  the  County 
Court  of  Yorkshire,  holden  at  Leeds,  the  following  case  was  stated 
by  the  Judge  :  — 

The  action  was  brought  to  recover  £22,  stated  in  the  plaintiffs 
particulars  of  demand  annexed  to  the  summons  to  be  due  to  him 
from  the  defendant,  <:  for  work  and  labour  done  find  performed, 
and  materials  found  and  provided  by  the  plaintiff  for  the  use  and 
on  account  of  the  defendants,  at  their  request,  and  also  upon  an 
account  stated,  full  particulars  whereof  have  been  sent  and  deliv- 
ered to  the  defendants." 

The  case  came  on  for  trial  at  Leeds,  on  the  2d  day  of  February, 
1863,  and  was  adjourned  from  time  to  time  to  the  1st  of  April 
following,  when  it.  was  fully  heard  before  Thomas  Horncastle 
Marshall,  Esquire,  Judge. 

On  the  trial  the  plaintiff's  attorney  stated  that  he  should  pro- 
ceed on  the  account  stated  only,  as  the  plaintiffs  cause  of  action, 
and  that  he  should  not  proceed  on  or  prove  the  other  causes  of 
action  alleged  in  the  particulars  of  demand. 


426  ACCOUNT. 


No.  3.  —  Laycock  v.  Pickles. 


The  facts  proved  at  the  trial,  so  far  as  they  are  material  to  this 
appeal,  are  as  follows  :  — 

The  plaintiff,  previous  to  the  year  1860,  purchased  of  one  David 
Metcalf  a  plot  of  land,  by  an  agreement  in  writing,  for  £123  18s. 
He  paid  a  deposit  on  the  purchase,  and  subsequently  several 
instalments  of  the  purchase-money,  and  interest  on  the  balance 
owing  from  time  to  time.  The  vendor,  however,  never  executed 
a  conveyance  to  him.  In  1860  the  plaintiff  was  indebted  to  the 
defendants  and  their  copartner,  Edward  Taylor  (who  carried  on 
business  under  the  firm  of  Pickles  &  Co.),  in  a  considerable  sum, 
and  being  required  to  pay  the  same,  he  deposited  with  them  the 
purchase  agreement  before  mentioned,  and  executed  an  indenture, 
bearing  date  the  28th  day  of  April,  1860,  whereby  he  charged  his 
interest  in  the  said  land  with  the  sum  of  £100,  stated  to  be  owing 
from  him  to  the  said  defendants.  In  1861  the  plaintiff  made  a 
contract  with  the  said  firm  of  Pickles  &  Co.  to  build  certain  houses 
for  them.  He  also  did  other  work  for  and  supplied  materials  to 
them.  During  the  progress  of  the  contract,  the  plaintiff  became 
embarrassed,  and  called  his  creditors  together,  and,  along  with  the 
principal  creditors,  he  had  an  interview  with  George  Edward 
Taylor,  one  of  the  defendants  ;  and  at  such  interview  a  builder, 
named  Wilks,  was  appointed  by  all  parties  concerned  to  value  the 
work  done  by  the  plaintiff  on  the  contract,  and  to  ascertain  the 
sum  due  in  respect  thereof.  The  valuation  was  completed ;  and 
on  the  6th  of  February,  1861,  the  plaintiff,  the  defendants,  and 
Wilks  met  together,  and  Wilks  made  out  a  statement  in  writing 
for  the  purpose  of  ascertaining  the  state  of  accounts  between  the 
plaintiff  and  the  firm  of  Pickles  &  Co.  From  that  account,  and 
from  the  evidence,  it  appeared  that  the  firm  were,  at  the  time  of 
taking  such  account,  creditors  of  the  plaintiff  to  the  extent  of 
X 111,  and  owed  him  £67  for  work  done  for  them,  leaving  the 
plaintiff  indebted  to  the  firm  on  the  cross-accounts  before  men- 
tioned in  a  balance  of  £44,  or  thereabouts.  These  accounts  having 
been  ascertained  and  agreed  to  at  the  interview  above  named,  the 
value  of  the  plaintiffs  interest  in  the  land  which  he  had  bought  of 
Metcalf,  and  on  which  the  defendants  held  the  equitable  security, 
as  before  mentioned,  was  also  calculated,  and  fixed  at  .£70,  which 
sum,  being  added  to  the  credit  of  the  plaintiff's  said  account  with 
the  defendants,  created  a  balance  in  the  plaintiffs  favour  of  £26. 
It  was  proved,  in  the  Judge's  opinion  (though  the  fact  was  denied 


SECT.  II.  —  STATED    ACCOUNT.  427 

No.  3.  —  Laycock  v.  Pickles. 

by  the  defendants),  that  the  defendant,  George  Edward  Taylor,  on 
behalf  of  the  said  firm,  at  the  said  interview,  verbally  agreed  to 
take  the  plaintiff's  interest  in  the  land  at  the  above-named  sum  of 
£70;  but  having  made  some  objection  to  the  balance  of  £26,  as 
being  too  great  a  sum,  he  agreed  that  such  balance  should  be 
taken  at  the  sum  of  £22,  to  which  the  plaintiff'  agreed.  The 
plaintiff  had  not  sued  Edward  Taylor,  the  third  partner  in  the  said 
firm  of  Pickles  &  Co.,  the  County  Court  Act  (9  &  10  Vict.  c.  95, 
§  68)  enabling  a  plaintiff  to  sue  any  one  or  more  joint  debtors 
without  being  subject  to  plea  of  non-joinder. 

It  was  admitted  by  all  parties  that  no  memorandum  in  writing 
(either  before,  at,  or  after  the  said  interview)  had  been  entered 
into  or  signed  by  the  plaintiff  or  the  defendants,  or  any  of  them, 
or  by  any  one  on  their  or  his  behalf,  for  the  purchase  of  the  plain- 
tiffs interest  in  the.  land  before  mentioned,  or  that  they  would 
pay  the  said  balance  of  £22  to  the  plaintiff.  The  land  so  verbally 
agreed  to  be  purchased  of  the  plaintiff  was  subsequently  sold  by 
the  defendants,  and  conveyed  by  them  to  one  William  Kirk 
Duxbury  for  the  sum  of  £127  lis.  6d.  It  was  agreed  by  the 
attorneys  on  both  sides  that  the  said  deed  of  conveyance  should 
be  taken  as  part  of  this  case. 

It  was  contended,  on  behalf  of  the  defendants,  that  there  was 
not  legal  evidence  to  support  the  plaintiff's  demand  for  £22  on  an 
account  stated ;  that  any  assent  to,  or  adoption  of,  that  balance  by 
the  defendants  formed  in  reality  one  of  the  terms  of  a  contract  or 
sale  of  lands,  or  some  interest  concerning  them,  and  required  by 
the  Statute  of  Frauds  to  be  in  writing,  signed  by  the  parties 
charged  therewith,  or  by  some  person  lawfully  authorised  thereto, 
and  that  no  such  memorandum  in  writing  had  been  proved ;  that 
in  point  of  law  there  was  not  sufficient  evidence  of  the  said 
account  stated  ;  that  there  was  no  evidence  of  any  subsisting  debt 
to  support  the  same,  but  that  the  contrary  was  proved. 

On  the  above  facts,  the  Judge  of  the  County  Court  held  that 
there  was  sufficient  evidence  of  an  account  stated  between  the 
parties,  on  which  the  plaintiff  was  entitled  to  recover  the  sum 
of  £22  ;  for  which  sum  a  verdict  was  accordingly  entered,  over- 
ruling the  points  raised  on  behalf  of  the  defendants. 

The  question  for  the  opinion  of  the  Court  was,  whether  the  said 
ruling  and  determination  of  the  Judge  of  the  County  Court  was 
correct  in  law.     And  if  the  Court  should  be  of  opinion  that  such 


428  ACCOUNT. 


No.  3.  —  Laycock  v.  Pickles. 


ruling  and  determination  was  incorrect  in  point  of  law,  then  the 
Court  might  set  aside  the  verdict  entered  for  the  plaintiff,  and 
make  such  order  as  the  Court  might  think  proper. 

After  argument,  in  which  Cocking  v.  Ward  (p.  433,  rpost)  and 
other  cases  were  cited  :  — 

Wightman,  J.  In  this  case  it  appears  that  there  were  del  its 
and  credits,  and  that  the  parties  were  desirous  of  settling  all  the 
differences  on  Loth  sides,  and  of  striking  a  balance  ;  and  it  was 
agreed  between  them  that  the  amount  of  the  plaintiffs  interest  in 
certain  land  to  be  taken  by  the  defendants  should  be  fixed  at  a 
certain  sum,  and  should  be  reckoned  in  an  account  stated  between 
the  parties,  subject  to  a  deduction  agreed  to  by  the  plaintiff.  That 
conveyance  was  duly  made.  If  the  account  had  been  stated  after 
the  execution  of  the  conveyance,  there  could  be  no  doubt  about 
the  matter ;  but  it  appears  to  me  that  the  parties,  in  effect,  agreed 
that  the  ascertained  sum  should  be  due  and  payable  then.  If  the 
consideration  failed,  such  failure  might  be  an  answer  to  the  action 
on  the  account  stated  ;  but  it  seems  to  me  that  after  the  consider- 
ation has  been  executed,  it  cannot  be  argued,  as  was  done  at  the 
hearing  of  the  case,  that  the  assent  to  or  adoption  of  the  balance 
by  the  defendants  formed  in  reality  one  of  the  terms  of  a  contract 
or  sale  of  lands,  or  some  interest  in  or  concerning  them  required 
by  the  Statute  of  Frauds  to  be  in  writing,  and  that  therefore  the 
defendants  cannot  be  legally  compellable  to  pay  the  amount  agreed 
to  be  due.  It  is  said  that  an  executory  agreement  cannot  amount 
to  an  account  stated;  but  I  think  that  the  cases  which  have  been 
cited  differ  from  the  present  in  this,  that  here  the  purchase-money 
is  treated  as  having  been  actually  paid ;  and  the  action  was 
brought  for  the  balance  which  was  agreed  to  be  due,  on  the  sup- 
position that  the  purchase-money  had  been  actually  paid.  In  the 
state  of  affairs  between  these  parties,  it  may  have  been  an  advan- 
tage to  the  defendants  that  there  should  have  been  a  settlement  of 
the  whole  account,  including  many  items,  and  that  the  account 
should  have  been  so  stated.  I  think,  therefore,  that  the  stating 
of  the  account  itself  was  a  sufficient  consideration,  and  that  an 
action  could  be  supported  upon  it,  subject  to  its  being  defeated 
by  the  non-conveyance  of  the  land. 

Blackburn,  J.  I  am  of  the  same  opinion.  [The  learned  Judge 
stated  the  facts,  and  then  proceeded.]  Can  this  sum  of  £22  be 
recovered  in  an  action  on   an  account  stated  ?     In  common  talk, 


SECT.  II.  —  STATED   ACCOUNT.  429 

No.  3.       Laycock  v.  Pickles. 

an  account  stated  is  treated  as  an  admission  of  a  debt  due  from 
the  defendant  to  the  plaintiff;  but  there  is  also  a  real  account 
stated,  which  is  equivalent  to  what  is  called  in  the  old  law  an 
insimul  computawruut,  when  several  items  of  claims  are  brought 
into  account  on  either  side,  and,  being  set  against  one  another,  a 
balance  was  struck,  and  the  consideration  for  the  payment  of  the 
balance  was  the  discharge  on  each  side.  I  do  not  agree  with  Mr. 
Quain,  that,  in  order  to  make  out  a  real  account  stated,  there  must 
be  real  debts  due  at  the  time,  or  that  the  claims  brought  into  the 
account  must  be  legal  claims  ;  equitable  claims  would  do,  and  I 
am  not  certain  that  a  moral  obligation  would  not  he  sufficient.  I 
think  that  the  matter  is  to  be  considered  as  if  the  sums  had  been 
paid  down  on  each  side,  and  had  been  actually  taken  in  satisfac- 
tion, subject  to  this  :  that  if  the  nature  of  some  of  the  items  be 
such  that,  if  they  had  been  actually  paid  over,  the  party  paying 
them  would  have  been  able  to  recover  them  back  as  upon  a  failure 
of  consideration,  the  Court  could  inquire  into  the  account  stated, 
and  could  hold  that  it  was  invalid.  That  is,  I  think,  consistent 
with  what  is  stated  in  Com.  Dig.  tit.  Pleader,  2-G.  11:  "So  to 
an  assumpsit  the  defendant  may  plead  that,  since  the  promise 
made,  he  and  the  plaintiff  insimul  computavefunt  et  super  compt. 
Me  ipse  inventus  fuit  in  arrear,  so  much,  which  he  has  paid." 
And,  further  on,  the  writer  says,  referring  to  3  Lev.  238,  that  "  an 
account  without  payment  or  release  is  no  plea  to  an  indebitatus 
assumpsit ;  for  a  chose  in  action  cannot  discharge  a  matter  executed." 
I  think  that  that  applies  to  the  case  of  an  account  stated,  where 
there  is  only  one  item  ;  but  where  there  are  several  items,  the 
account  stated  discharges  the  items  on  each  side,  as  wTas  ruled  in 
Mil  ward  v.  Ingram,  2  Mod.  43,  where  the  Court  held  a  plea  good 
which  was  to  the  effect  that  after  the  promises  made,  but  before 
the  action  brought,  the  parties  came  to  an  account  concerning  divers 
sums  of  money,  and  that  the  defendant  was  found  in  arrear  to  the 
plaintiff  305.  ;  whereupon,  in  consideration  that  the  defendant 
promised  to  pay  him  the  said  30s.,  the  plaintiff  likewise  promised 
to  release  and  acquit  the  defendant  of  all  demands.  The  same 
principle  is  to  be  found  in  Dawson  v.  Remnant,  6  Espinasse, 
24.  In  that  case  a  clear,  consistent,  and  intelligible  principle  is 
laid  down ;  and  the  report  is  probably  correct,  except  that  the 
reporter  makes  Mansfield,  C.  J.,  use  the  term  "set-off"  where 
"settlement  in   account"  must  have  been  really  meant.     Here,  I 


430  ACCOUNT. 

No.  3.  —  Laycock  v.  Pickles.  —  Notes. 

think,  the  arrangement  between  the  parties  was,  that  the  £70 
should  be  taken  as  if  it  had  been  paid  by  the  defendants  to  the 
plaintiff,  and  paid  back  to  the  defendants  in  part  payment  of  the 
<£lll  due  from  the  plaintiff  to  the  defendants,  and  that  th  i  <ult 
of  the  whole  was,  that  the  defendants  should  pay  to  bhe  -t'if 

£22.  Supposing  that  the  plaintiff  had  actually  paid  the  £70.  do 
not  think  that  he  could  have  recovered  it  back.  The  defend  nts 
object  that  inasmuch  as  the  transaction  was  all  by  word  ui  in  nth, 
they  could  not  enforce  the  agreement  for  the  transfer  of  the  e  u  ity 
of  redemption  ;  but  if  the  £70  had  been  actually  paid  down,  the 
defendants  would  not  be  able  to  get  it  back  unless  the  transfer  of 
the  equity  of  redemption  had  been  refused  when  they  had  asked. 
for  it;  but  there  is  no  attempt  to  show  that  the  plaintiff  has  ever 
refused  it,  or  that  he  has  set  up  the  Statute  of  Frauds.  Where 
there  has  been  a  real  insimul  computassent  of  several  items,  it  is 
just  the  same  as  if  the  money  had  been  actually  paid  and  returned. 
I  think  there  was  a  sufficient  account  stated,  and  that  the  plaintiff 
was  entitled  to  succeed. 

MELLOK,  J.  I  doubted  at  first  whether,  upon  the  finding  in  this 
case,  'this  balance  of  £22  was  the  result  of  a  real  accounting 
between  the  parties.  But  upon  a  more  careful  consideration,  I 
think  there  is  abundant  reason  why  it  should  be  reasonable  and 
proper  that  the  price  of  the  equity  of  redemption  should  be  brought 
into  the  account  which  the  parties  were  stating.  I  think  it  was 
so  brought  into  account,  and  I  agree  with  my  brothers. 

Judgment  for  the  plaintiff. 

ENGLISH    NOTES. 

"If  one  merchant  sends  an  account  current  to  another  in  a  different 
country,  on  which  a  balance  is  made  due  to  himself;  the  other  keeps  it 
by  about  two  years  without  objection;  the  rule  of  this  Court  (the  Court 
of  Chancery)  and  of  merchants  is,  that  it  is  considered  as  a  stated 
account."  Per  Lord  Chancellor  Hardwicke  in  Ticket  v.  Short  (March 
14,  1750-1751),  2  Ves.  239. 

On  a  motion  in  the  Queen's  Bench  for  prohibition  upon  an  action  in 
the  Lord  Mayor's  Court,  Brenan  v.  Crawley  (1SG8),  10  W.  R.  754,  the 
question,  was  whether  what  took  place  at  an  interview  in  London  — 
where  an  account  certified  by  an  agent  of  the  defendants  was  gone 
through  and  the  amount  admitted  —  created  a  cause  of  action  arising 
within  the  city  of  London.  The  Court  ruled  that  there  was  no  such 
cause  of  action,   and  that  prohibit]  >n  must  issue.      Blackburn,  J., 


SECT.  II. — STATED  ACCOUNT.  431 

No.  3.  —  Laycock  v.  Pickles.  —  Notes. 

cited  a  passage  from  the  judgment  of  Baron  Aldeiisox  in  Ashby  v. 
James  (1843),  11  M.  &  W.  542,  544;  12  L.  J.  Exch.  295,  that  "going 

through  an  account  where  there  art'  items  on  both  sides,  and  striking  a 
balance,  converts  the  set-oft  into  payments;  the  going  through  an  ac- 
count where  there  are  items  on  one  side  only  docs  not  alter  the  situation 
of  the  parties  at  all,  or  constitute  a  new  consideration,"  and  from  the 
judgment  of  Baron  Holfe  in  the  same  case:  "An  actual  settlement 
of  accounts  is  not  an  'acknowledgment  or  promise  by  words  only.'  It 
is  a  transaction  between  the  parties,  out  of  which  a  new  consideration 
arises  for  a  promise  to  pay  the  balance."  In  the  case  before  the  C  »urt 
the  learned  Judge  (Blackburn)  said  what  was  alleged  to  have  taken 
place  at  the  interview  amounted  to  no  more  than  a  simple  admission, 
which  does  not  alter  the  original  position  of  parties. 

AMERICAN  NOTES. 

The  following  general  principles  are  established  by  the  American  cases  in 
respect  to  Accounts  Stated  :  — 

1.  An  account  stated  is  an  agreement  that  all  the  items  are  correct.  Union 
Bank  v.  Knapp,  3  Pickering  (Mass.),  96 ;  15  Am.  Dec.  LSI;  Andingv  Levy, 
57  Mississippi,  51;  34  Am.  Rep.  435;  Claire  v.  Claire,  10  Nebraska,  54; 
Hawkins  v.  Long,  71  North  Carolina,  781. 

2.  It  need  not  be  signed  by  the  parties.  Lockwood  v.  Thome,  11  New  York, 
170 ;  62  Am.  Dec.  81 ;  Freeman  v.  Howell,  4  Louisiana  Annual,  196  ;  50  Am. 
Dec.  561 ;  Brown  v.  Vandyke,  4  Halsted  Chancery  (New  Jersey),  795 ;  55 
Am.  Dec.  250. 

3.  There  need  not  be  cross-demands.  Rutledge  v.  Moore,  9  Missouri,  537  ; 
Ware  v.  Dudley,  16  Alabama,  742  ;  Cobb  v.  Arundell,  26  Wisconsin,  553  ;  Kock 
v.  Bonitz,  4  Daly  (New  York),  117. 

4.  The  agreement  need  not  be  express,  but  may  be  implied.  Freeman  v. 
Howell,  supra;  Brown  v.  Vandyke,  supra ;  Gilchrist  v.  Association.  66  Barbour 
(New  York),  390. 

5.  There  must  be  an  absolute  and  unqualified  assent,  express  or  implied, 
to  a  certain  amount  or  balance  due.  Tassey  v.  Church,  4  Watts  &  Sergeant 
(Penn.),  141;  39  Am.  Dec.  65;  Stenton  v.  Jerome,  54  New  York,  480;  Cape 
Girardeau,  Sf c.  R.  Co.  v.  Kimmel,  58  Missouri,  83;  Reinhardt  v.  Hlnes,  51 
Mississippi,  314 ;  Bouslog  v.  Garrett,  39  Indiana,  338 ;  Boon/  v.  Hackett,  21 
Wisconsin,  613 ;  Pulllam  v.  Booth,  21  Arkansas,  420 ;  Volkening  v.  De  Graaf, 
81  New  York,  268. 

6.  .  The  admission  must  be  to  the  opposite  party  or  his  agent.  Hoffar  v. 
Dement,  5  Gill  (Maryland),  532;   Thurmond  v.  Sanders,  21  Arkansas,  255. 

7.  If  an  account  rendered  is  not  objected  to  within  a  reasonable  time,  it 
maybe  treated  as  an  account  stated.  Freeman  v.  Howell,  supra;  Brown  v. 
Vandyke,  supra  ;  Lockwood  v.  Thome,  supra ;  Langdon  v.  Roane,  '6  Alabama, 
518;  41  Am.  Dec.  60;  Freeland  v.  Heron,  7  Cranch  (U.  S.  Sup.  Ct.), 
147 ;    Oil    Co.   v.  Van  Etten,  107  United   States,    325 ;     Terry  v.   Sickles,  13 


432  ACCOUNT. 

No.  3.  —  Laycock  v.  Pickles.  —  Notes. 


California,  427;  Freas  v.  Truitt,  2  Colorado,  489  ;  While  v.  Campbell,  25  Michi- 
gan, 463  ;  Stebbins  v.  Niles,  25  Mississippi,  267;  Powell  v.  Pac.  R.  Co.,  65 
Missouri,  65S ;  Hawkins  v.  Long,  74  North  Carolina,  781 ;  Verrier  v.  Guillou, 
97  Penn.  St.  63;  Bun/en  v.  McElmoyle,  1  Bailey  Equity  (So.  Carolina), 
375;  Craighead  v.  Bank;  7  Yerger,  399;  Tharp  v.  Tharp,  15  Vermont,  105; 
Robertson  v.   Wright,  17  Grattan  (Virginia),  534. 

8.  The  doctrine  of  account  stated,  as  derived  from  acquiescence,  applies 
only  as  between  merchants.  Anding  v.  Levy,  57  Mississippi,  51 ;  34  Am.  Rep. 
435;  Rich  v.  Eldredge,  42  New  Hampshire,  153.  Contra:  Terry  v.  Sickles, 
supra;  White  v.  Hampton,  10  Iowa,  238;  Tharp  v.  Tharp,  supra  ;  White  v. 
Campbell,  supra  :  Townes  v.  Birchett,  12  Leigh  (Virginia),  173;  Shepardv.  Bank, 
supra.  In  Appleby  v.  Brown,  24  New  York,  143,  it  was  held  that  at  common 
law  an  action  of  account  would  only  lie  between  two  merchants,  and  was  not 
available  where  a  partnership  consisted  of  more  than  two.  Lockwood  v. 
Thome,  11  New  York,  170,  was  a  case  between  tanners  and  leather  merchants; 
Stenton  v.  Jerome,  54  New  York,  480,  a  stock-broker  and  a  customer ;  Co.se  v. 
Hotchkiss,  1  Abb.  Ct.  App.  Dec.  (New  York),  324,  attorney  and  client ;  Towsley 
v.  Denison,  45  Barbour  (New  York),  490,  vendor  of  stone  and  canal  contractor. 
In  Townes  v.  Birchett,  12  Leigh  (Virginia),  173,  Allen,  J.,  dissented. 

9     An  account  stated  may  be  impeached  for  fraud,  mistake,  duress,  &c. 

I  Story  Eq.  Jur.  §  523,  and  cases  cited  in  note,  62  Am.  Dec.  91.  It  "  is  a  mere 
admission  that  the  amount  is  correct.  It  is  not  an  estoppel."  Lockwood  v. 
Thome,  18  New  York,  285. 

10.  The  stating  an  account  is  in  the  nature  of  a  new  promise,  as  to  plead- 
ing. Smith  v.  Glens  Falls  Ins.  Co.,  66  Barbour  (New  York),  556  ;  McClelland's 
Exr  v.  West's  AdrnW,  70  Penn.  St.  183.  But  still  a  recovery  may  be  had 
on  the  original  account.  Cross  v.  Moore,  23  Vermont,  482.  But  see  Rand  v. 
Wright,  \-2>)  Massachusetts,  50. 

11.  An  item  disallowed  and  left  out  of  the  settlement  may  form  the  foun- 
dation of  subsequent  suit  or  set-off.  Bright  v.  Coff'mau,  15  Indiana,  371  ;  77 
Am.  Dec.  96;  Rehill  v.  McTague,  114  Penn.  St.  82  ;  00  Am.  Rep.  341. 

12.  An  action  will  not  lie  on  an  account  stated  growing  out  of  an  intrinsi- 
cally immoral  and  illegal  contract.     Melchoir  v.  McCarty,  31  Wisconsin,  252  ; 

II  Am.  Rep.  605 ;  Dunbar  v.  Johnson,  108  Massachusetts,  519.  But  see  as  to 
usury,  Bullard  v.  Raynor,  30  New  York,  202. 


SECT.  II. STATED  ACCOUNT.  433 


No.  4.  —  Cocking  v.  Ward.  —  Rule. 


No.   4  — COCKING   v.    WARD, 
(c.  p.  1845.) 

RULE. 

Where  a  contract  which,  by  reason  of  the  Statute  of 
Frauds,  could  not  (if  it  had  remained  executory)  have  been 
enforced,  has  been  executed  on  the  one  part,  and  the  con- 
sideration payable  on  the  other  part  admitted  as  a  debt, 
the  party  of  the  former  part  may  recover  it  by  action,  as 
a  debt  upon  account  stated. 

Cocking  v.  Ward. 

15  L.  J.  C.  P.  245  (s.  c.  1  C.  B.  858). 

Assumpsit.  The  first  count  of  the  declaration  recited  that  the 
plaintiff  was  the  occupier  of  a  farm,  as  tenant  thereof  from  year  to 
year  to  one  G.  H.  Vernon,  and  continued  such  tenant  until  a  certain 
day. — to  wit,  the  25th  of  March,  1842;  that  the  defendant  was 
desirous  of  taking  and  renting  the  said  farm  from  the  said  G.  H. 
Vernon,  and  had  thereupon  applied  to  and  requested  the  plaintiff 
to  surrender  and  relinquish  possession  of  the  said  farm  to  the  said 
G.  H.  Vernon,  on  the  said  25th  of  March,  and  to  apply  to  the  said 
G.  H.  Vernon,  and  endeavour  to  prevail  upon  him  to  accept  of  such 
surrender,  and  to  accept  the  defendant  as  tenant  of  the  farm  in 
place  of  the  plaintiff,  from  the  said  25th  of  March.  The  declaration 
then  stated  that,  thereupon,  afterwards,  and  whilst  the  said  plain- 
tiff's tenancy  was  still  subsisting,  —  to  wit,  on  the  1st  day  of  August, 
a.  D.  1841,  —  in  consideration  that  the  plaintiff,  at  the  request  of  the 
defendant,  would  surrender  and  relinquish  possession  of  the  said 
farm,  &c,  to  the  said  G.  H.  Vernon,  on  the  said  25th  of  March, 
1842,  and  would  also,  at  the  like  request  of  the  defendant,  apply 
to  the  said  G.  H.  Vernon  and  endeavour  to  prevail  upon  him  to 
accept  of  such  surrender,  and  also  to  accept  the  said  defendant 
as  tenant  of  the  said  farm,  &c,  in  lieu  and  in  place  of  the  said 
plaintiff,  from  the  said  25th  of  March,  1842,  he,  the  defendant,  under- 
took and  then  faithfully  promised  the  plaintiff  to  pay  her  £100 
when  and  as  soon  as  he,  the  defendant,  should  become  tenant  to 
the  said  G.  H.  Vernon  as  aforesaid,  in  lieu  and  in  place  of  the 
vol.  i.  — 28 


434  ACCOUNT. 


No.  4.  —  Cocking  v.  Ward. 


said  plaintiff  as  aforesaid.  The  declaration  then  averred  that 
afterwards,  and  after  the  making  of  the  said  promise,  to  wit,  on 
the  said  25th  of  March,  18-12,  —  she,  tiie  plaintiff,  confiding  in  the 
said  promise  of  the  defendant,  and  in  hopes  of  his  faithful  per- 
formance thereof,  did  then  surrender  and  relinquish  possession  of 
the  said  farm,  &c  to  the  said  G.  H.  Vernon,  from  the  day  and 
year  last  aforesaid,  and  did  also  then,  — -  to  wit,  on  the  day  and  year 
last  aforesaid,  —  apply  to  the  said  G.  H.  Vernon,  and  endeavour  to 
prevail  upon  him  to  accept  of  such  surrender,  and  also  to  accept 
him,  the  defendant,  as  tenant  of  the  said  farm,  &c,  in  lieu  and  in 
place  of  the  plaintiff,  from  the  day  and  year  last  aforesaid  ;  and, 
although  the  said  G.  H.  Vernon  did  afterwards, —  to  wit,  on  the  day 
and  year  last  aforesaid,  —  accept  of  such  surrender,  and  did  also 
then  accept  the  defendant  as  such  tenant  as  aforesaid,  in  lieu  and 
in  place  of  the  plaintiff  ;  and  although  the  defendant  did  after- 
wards —  to  wit,  on  the  day  and  year  last  aforesaid  —  enter  upon 
and  take  possession  of  the  said  farm,  &c,  and  then  became  tenant 
thereof  to  the  said  G.  H.  Vernon,  in  lieu  and  in  place  of  the  said 
plaintiff:  breach,  that  the  defendant  did  not,  when  he  so  became 
and  was  accepted  such  tenant,  pay  the  defendant  the  said  sum 
of  £100. 

The  second  count  was  upon  an  account  stated. 

Pleas  :  First,  non  assumpsit  to  the  whole  declaration.  Second, 
(to  the  first  count)  that  the  plaintiff  did  not  apply  to  and  endeav- 
our to  prevail  upon  the  said  G.  H.  Vernon  to  accept  the  defendant 
as  tenant  of  the  said  farm. 

The  cause  was  tried,  before  Coltman,  J.,  at  the  last  Summer 
Assizes  for  Nottinghamshire,  when  the  plaintiff  having  called  a 
witness  to  prove  the  agreement  stated  in  the  declaration,  it  was 
objected,  on  the  Statute  of  Frauds,  that  parol  evidence  was  not 
receivable,  as  the  contract  related  to  an  interest  in  land ;  and  a 
case  of  Whattoff  v.  Frisby,  which  was  tried  before  Patteson,  J., 
at  the  Leicester  Summer  Assizes,  1843,  was  cited,  as  being  directly 
in  point.  The  defendant,  upon  being  requested  to  pay  the  £100 
after  his  admission  to  the  farm,  admitted  his  liability.  It  was 
objected  that  this  parol  evidence  was  not  admissible  to  prove  an 
account  stated,  the  account  being  stated  with  respect  to  a  contract 
void  by  the  Statute  of  Frauds.  Coltman,  J.,  overruled  both  the 
objections,  reserving  leave  to  the  defendant  to  move  to  enter  a 
nonsuit  or  a  verdict. 


SECT.IL- — STATKD    ACCOUNT.  435 


No.  4.  —  Cocking  v.  Ward. 


A  rule  was  obtained  accordingly,  and,  after  argument,  the 
court  took  time  for  consideration. 

On  a  subsequent  day,  — 

TlNDAL,  C.  J.,  delivered  the  judgment  of  the  court.  There  \vere 
two  questions  brought  before  us  in  this  case  :  one,  whether  the 
contract  stated  in  the  first  count  of  the  declaration  was  a  contract 
which  was  required  to  be  proved  by  a  written  memorandum,  signed 
by  the  party ;  the  other,  whether  there  was  sufficient  evidence  to 
maintain  the  verdict  for  the  plaintiff  on  the  count  upon  an  account 
stated.  The  special  count  of  the  declaration  was  framed  upon  an 
agreement  between  the  plaintiff  and  the  defendant,  that  if  the 
plaintiff,  the  tenant  of  a  farm,  would  surrender  her  tenancy  to 
her  landlord  on  the  25th  of  March  then  next,  and  would  prevail 
on  her  landlord  to  accept  the  defendant  as  his  tenant  in  the  place 
of  the  plaintiff,  he,  the  defendant,  would  pay  the  plaintiff  £100 
as  soon  as  he  should  become  the  tenant  of  the  land.  It  was  not 
contended  that  a  contract  under  which  the  plaintiff,  in  considera- 
tion of  a  sum  of  money,  gave  up  his  tenancy  in  the  land  and  pro- 
cured the  defendant  to  be  put  into  her  place  was  not  "  a  sale  of 
an  interest  in  land"  within  the  meaning  of  the  Statute  of  Frauds  ; 
but  the  argument  before  us  was,  that  although,  if  this  contract  had 
been  executory,  it  must  have  been  proved  by  an  agreement  or 
memorandum  in  writing,  yet,  as  it  was  executed,  as  the  plaintiff  had 
surrendered  her  tenancy,  and  had  procured  the  defendant  to  be  made 
:i  it  instead  of  herself,  the  case  was  not  to  be  held  to  be  within  the 
-i  itute  ;  and  the  case  of  Price  v.  Le>/hurn,Go\y.  109,  before  Dallas, 
(J.  L  was  relied  upon  as  an  authority  to  that  effect.  But  as  the 
s|j  iiil  count  in  this  action  is  framed  upon  the  very  contract  itself, 
o  iiorce  the  payment,  by  the  defendant,  of  the  sum  stipulated  to 
be  paid  as  the  price  of  the  interest  in  the  land  which  the  plaintiff 
gave  up,  and  to  which  the  defendant  succeeded,  we  think  the  con- 
tract tself  cannot  be  considered  as  altogether  executed,  so  lonjj  as 
the  defendant's  part  still  remains  to  be  performed.  And  the  case 
appears  to  us  to  fall  within  the  principle  adverted  to  by  Le  Blanc,  J., 
in  Griffith  v.  Young,  12  East.  513  ;  and,  further,  we  think,  the  case  of 
Buttcmere  v.  Hayes,  5  M.  &  W  459,  9  L.  J.  (x.  s.)  Exch.  44,  is  an  au- 
thority in  point  that  the  present  contract,  though  executed  on  the 
part  of  the  plaintiff,  yet  not  being  executed  on  the  part  of  the  defen- 
dant also,  is  still  to  be  considered  a  contract  within  the  Statute  of 
Frauds.     The  plaintiff,  therefore,  failing  upon  the  special  contract, 


436  ACCOUNT. 


No.  4.  —  Cocking  v.  Ward. 


the  remaining  question  is,  whether  she  is  in  a  condition  to  recover  the 
£100  under  the  count  upon  an  account  stated.     There  was  distinct 
evidence  in  this  case,  that  after  the  plaintiff'  had  given  up  the  pos- 
session, and  after  the  defendant  had  succeeded  to  it  through   the 
plaintiff's  application  to  the  landlord,  the  defendant  admitted  that 
he  owed  the  £100  to  the  plaintiff'.     And  this  appears  to  us  to  be 
sufficient  evidence  to  enable  the  plaintiff  to  recover  on  the  account 
stated.     The  objection  was,  that  the  admission  of  a  debt  will  only 
enable  a  plaintiff'  to  recover  as  upon  an  account  stated,  where  the 
debt  itself  does  not  appear  to  be  incapable  of  being  recovered  as  a 
debt;  and  that,  here,  the  plaintiff  could  not  recover  upon  the  orig- 
inal contract,  inasmuch  as  it  was  not  evidenced  by  a  writing  signed. 
But,  in  the  first  place,  such  an  exception  is  contrary  to  the  author- 
ity of  several  decided  cases.     In  Knowles  v.  Michel,  13  East,  249,  the 
ground  of  the  original  debt  was  a  sale  to  the  defendant  of  standing 
trees,  which  the  defendant  afterwards  procured  to  be  felled  and  taken 
away;    and  the  objection  was,  that  the  plaintiff  could  not  recover 
on  the   original  contract  for  standing  trees,  which   formed  part  of 
the  realty.    But  it  was  held,  nevertheless,  that  the  acknowledgment 
of  the  price  to  be  paid  for  the  trees,  after  they   were  felled  and 
applied  to  the  use  of  the  defendant,  was  sufficient  to  sustain  the 
count  on  the  account    stated,   Lord   EUenborough    saying,  that  if 
there  was  an  acknowledgment  by  the  defendant  of  a  debt  due  to 
the  plaintiff'  upon  any  account,  it  was  sufficient  to  enable  him  to 
recover  on  an  account  stated.     And  afterwards,   in  Highmore  v. 
Primrose,  5  Man.  &  Selvv.  65,  the  court  held  that  the  proof  of  the 
acknowledgment  of  one  item  of  debt  only,  was  good  to  support  a 
count  upon  an  account  stated  ;  and  the  former  case  was  there  men- 
tioned and  relied  on.     In  Piiichon   v.   Chilcott,  3  Car.  &  Pay.  236, 
there  was  a  verbal  contract  for  turnips  growing  in  a  field,  upon 
which  it  was  held  that  the  plaintiff  could  not  recover;  yet,  as  the 
defendant  admitted,  after  some  of  the  turnips  were  drawn,  that  he 
owed  the  plaintiff  £3  for  them,  it  was  held  at  Nisi  Prius  that  he 
could   recover  to   that   amount   upon   an  account   stated  ;  and   no 
motion  was  made  to  the   court  to  question    the  ruling.     And  in 
Seago  v.  Deane,  4  Bing.  459;  s.  c.  6  Law    J.  Rep.  C.  P.  66,  a  prom- 
ise to  pay  a  specified  sum,  where  the  party  had  had  the  benefit' of 
the  contract,  though  he  could  not  have  been  sued  upon  it,  on  ac- 
count of  its  being  a  verbal  contract  only,  was  held  to  be  good  evi- 
dence on  the  account  stated.     See  also  Peacock  v.  Harris,  10  East, 


SECT.  II.  —  STATED    ACCOUNT.  437 

No.  4.  —  Cocking  v.  Ward.  —  Notes. 

104.  Upon  the  authority,  therefore,  of  decided  cases,  we  think  the 
plaintiff's  right  to  the  verdict  on  the  account  stated  may  be  sus- 
tained. And  we  think  it  sustainable  also  on  principle;  for  after 
the  debt  has  formed  an  item  in  an  account  stated  between  the 
debtor  and  his  creditor,  it  must  be  taken  that  the  debtor  has  satis- 
fied himself  of  the  justice  of  the  demand;  that  it  is  a  debt  which 
he  is  morally,  if  not  legally,  bound  to  pay,  and  which,  therefore, 
forms  a  good  consideration  for  a  new  promise ;  and  the  creditor, 
on  the  other  hand,  may  reasonably  be  excused  for  not  preserv- 
ing the  evidence  which  would  have  been  necessary  to  prove 
the  original  debt  before  such  admission.  The  principle  may  not, 
perhaps,  be  applicable  to  cases  where  it  can  be  shown  that  the 
original  debt  is  absolutely  void  from  any  illegal  or  immoral  con- 
sideration, or  where  it  is  made  void  by  any  statute,  as  by  those 
against  usury  or  gaming  ;  but  we  think  it  applies  to  cases  where 
the  only  objection  is,  that  the  original  debt  might  not  have  been 
recoverable,  from  the  deficiency  of  legal  evidence  to  support  it. 
We,  therefore,  think  the  verdict  for  the  plaintiff,  on  the  first  count, 
should  be  set  aside,  and  a  verdict  thereon  entered  for  the  defen- 
dant; but  that  the  verdict  should  stand  for  the  plaintiff  on  the 
second  count.  Rule  accordingly. 

ENGLISH   NOTES. 

This  case  is  an  example  of  the  way  in  which,  in  the  days  of  strictest 
pleading,  a  certain  elasticity  was  allowed  in  order  to  do  substantial  jus- 
tice. For  that  purpose,  and  in  a  case  where  money  was  clearly  due  in 
some  form  or  other,  the  admission  was  held  sufficient  to  support  the 
plea  of  money  due  on  account  stated,  although  the  stating  of  the  account 
did  not  itself  involve  a  consideration  for  the  promise  to  pay  it. 

In  Pulbrook  v.  Lawes (1876),  1Q.  B.  P.  284.  289;  45  L.  J.  Q.  B.  178, 
it  is  remarked  by  Blackbcrx,  J.,  1  Q.  B.  D.  289,  that  the  principal  case- 
was  decided  before  the  Common  Law  Procedure  Acts  came  into  opera- 
tion; and  he  implies  that  the  question  of  pleading  under  those  acts 
would  probably  not  have  arisen  in  the  same  form. 

To  support  the  action  under  the  ordinary  money  counts  of  the  C.  L.  P. 
Act,'  1852,  it  would  perhaps  have  been  enough  to  say  that  the  delivery 
up  of  possession  was  a  new  consideration  (causa,  in  the  sense  of  con- 
sideration executed)  to  support  a  new  promise  to  pay,  which  would  be 
implied  by  the  acceptance  of  the  possession  under  the  circumstances. 
But  this  was  not  the  way  the  assumpsit  was  pleaded. 

The  observations  in  the  latter  part  of  the  judgment,  to  the  effect  that, 
where  the  original  contract   is   void  from  an   illegal  consideration,  the 


438  ACCOUNT. 


No.  4.  —  Cocking  v.  Ward.  —  Notes. 


debt  could  not  form  a  good  consideration  for  a  new  promise  so  as  to 
support  a  declaration  on  an  account  stated,  are  confirmed  by  the  judg- 
ment of  the  Court  of  Common  Pleas  in  Kenned//  v.  Brown  (1863),  13 
C.  B.  N.  S.  677;  32  L.  J.  C.  P.  137.  (Seepost,  ''action  "  No.  18.)  The 
distinction  made  by  Lord  Loughborough  for  this  purpose,  in  Watts  v. 
Brooks  (1798),  3  Ves.  61U,  between  considerations  immoral  in  themselves 
and  those  against  a  prohibitory  statute,  has  long  been  considered  and 
treated  as  overruled.    See  Knoioles  v.  Haughton  (1805),  11  Ves.  168, 169. 

AMERICAN   NOTES. 

See  ante,  p.  432,  par.  12.  The  principal  case  is  cited  by  Mr.  Freeman  in 
note,  62  Am.  Dec.  93.  The  cases  distinguish  between  transactions  intrinsi- 
cally immoral  and  those  merely  prohibited  by  statute. 

"  But  though  an  agreement  be  legally  void  and  unenforceable  by  reason  of 
some  statutory  or  common-law  prohibition,  which  does  not  involve  positive 
immorality,  and  there  is  no  other  reason  of  public  policy  why  the  courts. 
should  refuse  to  grant  relief,  a  party  who  has  received  anything  under  it  from 
the  other  party,  and  has  failed  to  perform  on  his  part,  must  account  to  the 
other  for  what  he  has  received."  2  Beach  Eq.  Jur,  §  854  ;  1  Pomeroy  Eq. 
Jur.  §  403.  See  Manchester,  ire.  R.  Co.  v.  Concord  R.  Co.,  New  Hampshire, 
20  Atl.  Rep.  383,  and  cases  cited;  Brooks  v.  Martin,  69  United  States,  70: 
Planters''  Bank  v.  Union  Bank,  83  United  States,  483  ;  White  v.  Franklin  Bank, 
22  Pickering  (Massachusetts),  181 ;  Whitney  v.  Peay,  24  Arkansas,  22  ;  Phila. 
Loan  Co.  v.  Towner,  13  Connecticut,  249;  Foulke  v.  San  Diego,  Sfc.  R.  Co.,  51 
California,  365  ;  Pratt  v.  Short,  79  Xew  York,  445,  a  case  of  recovery  of  loan 
for  which  usurious  securities  were  given. 

Where  one  has  rendered  services  or  transferred  property  under  a  contract- 
voidable  under  the  statute  of  frauds,  he  may  recover  the  value  of  the  services 
or  property.      Wolke  v.  Fleming,  103  Indiana,  105;  53  Am.  Rep.  495. 

There  are  numerous  cases  holding  that  where  the  agreement  is  executed, 
the  party  in  default  may  be  held  in  an  action  for  the  price  or  value.  Reming- 
ton v.  Palmer,  62  Xew  York,  31  ;  Wetherbee  v.  Potter,  99  Massachusetts,  360 ; 
Warden  v.  Sharp,  56  Illinois,  104;  King  v.  Broicn,  2  Hill  (Xew  York),  485; 
Detroit,  Sfc.  R.  Co.  v.  Forbes,  30  Michigan,  '166. 

If  A.  lets  B.  into  possession  of  a  house,  under  an  oral  promise  that  if  he  will 
make  certain  improvements  he  will  lease  it  to  him  for  twelve  years,  and  after 
the  improvements  are  made  refuses  to  do  so,  B.  cannot  recover  for  work  and 
labour.  Hopkins  v.  Richardson,  5  X.  Y.  Leg.  01>s.  149;  Gillett  v.  Maynard, 
5  Johns.  85.  But  he  lias  a  remedy  in  equity.  McNamee  v.  Withers,  37  Mary- 
land, 172.  But  if  A.  fraudulently  represents  that  he  is  owner  of  lands,  and 
induces  B.  to  do  work  on  them  in  expectation  of  becoming  joint  owner,  he 
may  recover  for  his  work  although  the  contract  was  void  under  the  Statute  of 
Frauds.     Rickard  v.  Stanton,  16  Wendell  (Xew  York),  25. 

Where  plaintiff  entered  on  defendant's  land  under  an  oral  agreement  to  pur- 
chase, and  sowed  oats  with  his  consent,  and  defendant  refused  to  perform,  and 
ejected  him,  he  was  held  entitled  to  the  crop.  Harris  v.  Frink,  49  Xew  York, 
21 ;  1(1  Am.  Rep.  318.  See  also  Stone  v.  Stone,  43  Vermont,  180  ;  Day  v.  N.  Y. 
Sfc.  R.  Co.,  51  Xew  York,  583,  590;  Harris  v.  Harris,  70  Penu.  St.  170. 


SECT.  III.  —  SETTLED   ACCOUNTS.  439 


No.  5.  —  Dunbar  v.  Lem.  —  Rule. 


Section  III.  —  Settled  Accounts,  how  far  conclusive. 

No.  5.— DUNBAR  v.  LEM. 

(h.  l.  1772.) 

RULE. 

No  settled  account  ought  to  be  opened  upon  the  mere  gen- 
eral suggestions  of  a  bill  in  Equity  ;  especially  when  the 
truth  of  such  suggestions  is  fully  and  substantially  denied 
by  the  answer. 

Dunbar  v.  Lem. 

1  Brown,  P.  C.  3. 

The  respondent,  William  Lem,  in  the  year  1751,  became  clerk  to 
the  appellant,  who  was  then  a  merchant  in  London,  and  agreed  to 
attend  him  four  hours  in  the  morning  and  two  hours  in  the  after- 
noon, if  required,  to  keep  his  books,  and  to  do  the  usual  business  of 
a  clerk,  during  the  time  he  continued  in  that  capacity  ;  but  he  found 
the  appellant's  books  unsettled  and  unbalanced. 

About  the  year  1753,  the  respondent  followed  the  business  of  an 
insurance  broker,  and  in  March,  1761,  of  an  underwriter,  and  had 
dealings  with  the  appellant  and  various  other  persons  to  a  very 
large  amount;  and  his  demand  on  the  appellant,  as  an  insurance 
broker  and  underwriter,  for  premiums  only,  amounted  to  £12,000 
and  upwards,  antecedent  to  the  31st  of  December,  1762. 

The  appellant  being  engaged  as  agent  and  owner  of  a  great  num- 
ber of  privateers,  was  frequently  in  distress  for  money,  and  bor- 
rowed several  sums  to  a  considerable  amount  of  the  respondent, 
William  Lem,  who  not  only  lent  him  his  own  money,  but,  from 
motives  of  friendship,  borrowed  money  of  others,  and  stretched  his 
credit  to  serve  the  appellant  and  extricate  him  out  of  his  pecuniary 
difficulties. 

The  appellant,  being  frequently  absent  from  London,  found  it 
necessary,  for  the  transaction  of  his  business,  to  give  the  respondent, 
William  Lem,  an  unlimited  authority  to  draw  on  his  banker,  and 
to  leave  with  him  blank  papers  signed  with  the  appellant's  name, 
which  is  usual  among  merchants  when  they  place  confidence  in 


440      ,  ACCOUNT. 


No.  5.  —  Dunbar  v.  Lem. 


their  clerks ;  but  the  respondent  constantly  accounted  with  the 
appellant,  when  he  returned  to  town,  for  all  money  paid  and 
received  in  consequence  of  such  authority. 

The  appellant,  finding  his  want  of  money  increase,  as  well  from 
his  extravagant  manner  of  living  as  from  his  losses  in  his  new 
trade  of  privateering,  was  reduced  to  the  necessity  of  mutually  bor- 
rowing, and  lending  his  name  to  notes  and  bills,  payable  at  a  future 
day,  in  order  to  raise  money  by  discount ;  a  great  part  of  which  passed 
through  the  hands  of  the  respondent,  William  Lem,  but  no  entries 
were  made  either  of  the  receipt  or  payment  of  many  such  notes 
and  bills,  because  they  were  generally  destroyed  as  soon  as  they 
had  served  their  purpose,  so  that  no  trace  remained  of  the  trans- 
action. 

The  respondent,  William  Lem,  was  so  fully  employed  in  raising- 
money  and  transacting  the  business  of  the  privateers  that  he  had 
no  time  even  to  post  the  appellant's  books,  much  less  to  balance 
them,  of  which  the  appellant  was  so  sensible  that  he  hired  one 
Richard  Postlethwaite  for  that  purpose,  and  the  respondent,  William 
Lem,  was  obliged  to  leave  the  appellant's  books  at  the  expiration  of 
his  clerkship  unbalanced,  as  he  received  them  from  William  Hun- 
ter, the  appellant's  former  clerk. 

On  the  20th  of  February,  1762,  the  appellant  executed  a  deed  of 
co-partnership  between  him  and  the  respondent,  in  consideration, 
among  other  things,  that  the  respondent  might  by  means  of  his 
credit  raise  money  to  enable  the  appellant  to  carry  on  his  business ; 
and  he  accordingly  continued  to  advance  money  for  the  use  of  the 
appellant,  from  time  to  time,  so  that  the  debt  due  to  the  respondent 
in  the  year  1762  amounted  to  £4341  14s.  lid.  upon  a  fair  balance 
of  all  accounts  then  subsisting  between  them,  except  the  co-part- 
nership account. 

The  appellant  having  lost  upwards  of  £15,000  by  gaming  in 
Exchange  Alley,  the  respondent  became  very  uneasy,  and  re- 
quested him  to  execute  a  mortgage  for  £2000  or  £3000,  or  any 
nominal  sum,  to  secure  what  was  owing  to  him  (the  respondent  at 
that  time  not  having  balanced  the  account  between  them);  but  Mr. 
Francis  Eyre,  the  solicitor  for  the  appellant,  refused  to  let  the  appel- 
lant give  a  mortgage  for  any,  except  the  real  and  exact  sum  which 
should  be  found  due  to  the  respondent  on  the  balance  of  all  their 
accounts  ;  whereupon  the  respondent,  some  time  after,  having  settled 
such  balance,  which  amounted  to  £4341  14s.  lid.,  the  appellant,  by 


SECT.  III.  —  SETTLED   ACCOUNTS.  441 

No.  5.  —  Dunbar  v.  Lem. 

the  approbation  of  the  said  Francis  Eyre,  executed  a  mortgage  for 
that  sum,  being  the  exact  balance  of  all  accounts  then  subsisting 
between  them,  to  the  3lst  of  December,  1762  (except  the  co-partner- 
ship account),  which  mortgage  the  appellant  himself  sent  to  Antigua 
to  be  registered  ;  and  the  respondent,  on  receiving  the  mortgage, 
signed  a  paper  agreeing  to  rectify  any  mistake  in  the  settled  account 
which  the  appellant  should  afterwards  discover. 

Having  thus  balanced  and  settled  all  accounts  between  the  appel- 
lant and  the  respondent,  William  Lem,  to  the  31st  of  December, 
1762,  except  the  account  of  the  co-partnership,  a  second  account 
was  opened  between  them,  commencing  from  that  period,  and  dis- 
tinguished by  the  name  of  the  private  account;  and  the  appellant 
was  indebted  to  the  respondent  very  considerably  on  this  second 
account. 

On  the  execution  of  the  deed  of  co-partnership  a  third  account 
was  opened  between  them,  called  the  co-partnership  account,  which 
continued  till  the  expiration  of  the  partnership  in  February,  1766  ; 
and  the  appellant  was  likewise  considerably  indebted  to  the  re- 
spondent on  the  balance  of  this  third  account. 

As  to  the  second  and  third  accounts,  the  respondent  was  ready 
to  settle  them  with  the  appellant  as  soon  as  possible ;  but  as  to  the 
£4341  14s.  lid.,  it  was  the  balance  of  a  settled  account,  and  was 
always  considered  as  such  by  the  appellant  himself,  who,  sixteen 
months  after  the  execution  of  the  mortgage  for  securing  that  bal- 
ance, wrote  a  letter  to  Mr.  Fraser,  part  of  which  was  in  the  follow- 
ing words :  "  I  thought  it  absolutely  incumbent  on  me  in  the 
spring  of  1763  to  take  care  of  all  my  friends  that  had  lent  me  hard 
sums  of  money  in  preference  to  any  dealers,  but  more  especially  in 
preference  to  any  of  the  Alley  people,  and  therefore  gave  a  mort- 
gage to  Mr.  William  Lem,  reciting  that  I  was  under  covenant  to 
mortgage  to  you  first,  and  stood  indebted  to  you  for  £2000,  and  to 
Mr.  Gough  and  to  Mr.  Knowlys  for  certain  sums  specified  by  bonds, 
and  sent  that  mortgage  to  Antigua,  which  is  now  registered,  a  copy 
of  which  you  may  see  at  Mr.  Lem's,  in  Brabant  Court,  Philpt  Lane." 

In  the  month  of  November,  1764,  the  respondent  intended  to 
have  proceeded  at  law  against  the  appellant  to  recover  the  said 
sum  of  £4341  14s.  lid.,  together  with  all  interest  due  thereon  ;  but 
he  absconded  till  he  had  obtained  the  injunction  of  the  Court  of 
Exchequer,  and  by  that  means  prevented  the  respondent  from  pro- 
ceeding against  him. 


442  ACCOUNT. 


No.  5.  —  Dunbar  v.  Lem. 


In  Michaelmas  Term,  1764,  the  appellant  filed  his  bill  against 
the  respondent  for  an  injunction  against  proceedings  at  law  ;  and 
subsequently,  in  February,  1766,  an  amended  bill,  suggesting  that 
the  appellant  did  not  understand  merchants'  accounts  ;  that  the 
respondent,  William  Lem,  had  taken  unfair  advantage  thereof; 
that  he  was  only  a  clerk  at  £40  a  year,  and  was  therefore  inca- 
pable of  lending  the  appellant  £4341  14s.  lid.;  that  he  had 
opened  a  book  with  his  banker,  and  with  the  Bank  of  England, 
on  purpose  to  confound  the  account  between  him  and  the  appel- 
lant ;  and  that  either  by  keeping  back  money,  or  by  rendering 
an  unfair  account,  or  by  some  other  means,  the  balance  of 
£4341  14s.  lid.  was  not  justly  owing,  and  ought  not  to  be  paid 
to  the  respondent  ;  and,  further,  stating  that  the  respondent,  Ann 
Lem  was  a  separate  trader. 

The  respondent,  by  his  answer,  denied  the  whole  equity  of  the 
bill,  and  said  that  the  books  and  schedules  annexed  to  his  answers 
were  kept  and  stated  in  a  regular  manner,  according  to  the  custom 
of  merchants,  and  that  they  contained  a  full  and  fair  account  of 
all  money,  bills,  notes,  produce,  or  value  that  were  ever  paid  or 
received  by  the  respondent,  or  any  person  by  his  order  or  for 
his  use,  on  the  appellant's  account,  except  such  sums  of  which 
no  entry  had  ever  been  made,  as  already  stated ;  that  the  appel- 
lant was  not  ignorant  of  merchants'  accounts,  but  on  the  contrary 
understood  them  very  well,  and  was  capable  of  keeping  a  regular 
set  of  merchants'  books  ;  and  that  the  respondent  almost  daily 
accounted  with  the  appellant  for  his  cash,  and  all  the  other  trans- 
actions of  his  business,  and  that  he  was  very  capable  of  detecting 
any  errors  in  such  accounts  if  there  had  been  any ;  that  the 
£4341  14s.  lid.  was  the  balance  of  a  settled  account,  and  that  it 
was  considered  as  such  by  the  appellant  himself  during  a  period 
of  eighteen  months  ;  and  that  the  said  £4341  14s.  1  Id.,  together 
with  all  interest  due  thereon,  was  then  justly  due  and  owing  from 
the  appellant  to  the  respondent,  after  having  allowed  all  proper 
credit  to  the  appellant  on  every  account  whatsoever,  and  after 
having  fairly  and  honestly  accounted  to  the  appellant  for  all  sums 
of  money  ever  received  by  the  respondent  for  the  appellant  or  for 
his  use.  And  the  respondent  insisted  on  the  settled  account  and 
mortgage  in  bar  of  any  account  between  the  appellant  and  the 
respondent,  antecedent  to  the  31st  of  December,  1762,  and  hoped 
he  should  have  the  same  benefit  as  if  he  had  pleaded  the  same. 


SECT.  III.  —  SETTLED    ACCOUNTS.  443 

No.  5.  —  Dunbar  v.  Lem. 

Various  exceptions  to  the  answer  having  been  overruled,  oil  a 
hearing  on  the  merits  it  was  ordered  that  the  in  junction  should  be 
absolutely  dissolved. 

The  appellant,  having  appealed  to  the  House  of  Lords,  eon- 
tended  on  the  merits  that  the  mortgage  was  extorted  from  him 
when  he  was  under  the  utmost  distress  in  his  circumstances,  and 
•all  his  creditors  were  falling  on  him  for  a  balance  of  accounts 
pretended  to  be  due  from  him  to  the  respondent  upon  his  own 
representation,  who  had  it  in  his  power  to  impose  upon  the  appel- 
lant and  to  make  or  omit  any  entries  he  pleased  in  his  books  of 
account,  having  had  the  sole  management  of  his  affairs ;  and  it 
appeared  by  the  respondent's  answer,  and  by  the  recital  in  the 
mortgage  deed,  that  the  accounts  between  the  appellant  and  respon- 
dent were  not  settled,  but  only  stated  by  the  respondent,  and  that 
upon  such  stating  the  balance  was  made  to  be  £4341  14s.  lid.  It 
was  admitted  by  the  respondent  that  at  first  he  proposed  security 
to  be  given  him  for  £2000  only  ;  that  in  a  few  days  afterwards  he 
proposed  the  security  to  be  for  £3000,  and  in  a  few  days  after  that 
for  upwards  of  £4000,  which  the  appellant  found  himself  under 
the  necessity  of  submitting  to  in  his  then  situation  of  affairs, 
without  examining  the  accounts;  and  understanding  that  the  mort- 
gage was  not  to  be  an  absolute  security  for  the  £4341  14.5.  lid., 
but  a  security  only  for  what,  if  anything,  should  be  really  due 
from  him  to  the  respondent,  trusting  that  at  some  future  time  the 
accounts  would  be  fairly  taken  and  settled ;  and  therefore  the 
respondent  ought  not  to  proceed  at  law  upon  the  security  until 
the  account  between  the  parties  should  be  liquidated  and  adjusted; 
that  the  respondent,  becoming  partner  with  the  appellant  in  1762, 
upon  the  unreasonable  terms  of  the  appellant,  being  bound  to 
secure  to  him  a  profit  of  £200  a  year  at  all  events,  afforded  two 
very  strong  inferences  :  1st,  that  there  was  not  anything  due  to 
the  respondent  at  that  time  upon  the  balance  of  all  accounts  ;  for 
if  there  had  been,  the  respondent  would  have  settled  and  adjusted 
the  same  before  entering  into  such  partnership;  and,  2ndly,  that 
the  appellant  was  ignorant  of  his  affairs,  and  in  the  respondent's 
power,  and  ready  to  come  into  any  terms  he  proposed.  It  was 
therefore  hoped  that  the  orders  complained  of  would  be  reversed, 
with  costs,  and  that  the  injunction  would  be  continued  till  the 
hearing  of  the  cause,  and  further  order. 

On  the  part  of  the  respondent  it  was  insisted  that  the  £4341 


444  ACCOUNT. 

No.  5.  —  Dunbar  v.  Lem.  — Notes. 

14s.  lid.  was  the  balance  of  a  settled  account,  for  securing  which 
the  appellant  executed  a  mortgage,  and  that  no  settled  account  ought 
to  be  opened  upon  the  bare  suggestion  of  a  bill  in  equity,  especially 
when  the  truth  of  such  suggestions  is  fully  and  substantially  de- 
nied by  the  answer ;  that  the  paper  signed  by  the  respondent  and 
called  by  the  appellant  a  defeazance  was  nothing  more  than  an 
acknowledgment  on  the  part  of  the  respondent  to  rectify  any  error 
in  the  said  account,  which,  it  was  apprehended,  did  not  open  the 
whole  account,  but  only  the  particular  item  or  charge  supposed  to 
be  erroneous  ;  that  if  there  was  any  error  in  this  account,  it  was 
incumbent  on  the  appellant  to  have  pointed  it  out  in  a  reasonable 
time,  but  which  neither  he  nor  his  agents  had  been  able  to  do 
during  a  space  of  eight  years  ;  on  the  contrary,  after  a  cartful 
examination  they  had  declared  that  they  were  perfectly  satisfied 
with  the  respondent's  account,  and  could  find  no  error  therein  ; 
that  the  respondent  was  under  no  obligation  to  settle  the  appel- 
lant's books,  or  transact  any  of  his  affairs  as  clerk,  after  the  expi- 
ration of  his  clerkship,  especially  as  he  had  stated  a  very  fair 
account  between  him  and  the  appellant ;  and  therefore,  if  the 
appellant's  accounts  with  his  other  correspondents  were  unsettled, 
he  ought  to  be  at  the  expense  and  trouble  of  making  them  out,  as 
they  had  no  relation  whatever  to  the  respondent. 

After  hearing  counsel  on  this  appeal,  it  was  ordered  and  adjudged 
that  the  same  should  be  dismissed,  and  the  several  orders  therein 
complained   of  affirmed. 

ENGLISH   NOTES. 

Where  an  order  is  made  under  the  modern  practice  directing  an 
account,  the  accounting  party  may  set  up  settled  accounts,  although 
the  order  does  not  expressly  direct  that  settled  accounts  shall  not  be 
disturbed;  and,  on  the  other  hand,  the  opposite  party  may  impeach  (on 
the  ground  of  fraud)  any  settled  accounts  set  up,  although  the  order  is 
equally  silent  with  regard  to  impeaching  them.  Hoi  (jute  v.  Shutt 
(C.  A.  Nov.,  1884),  28  Oh.  D.  Ill ;  54  L.  J.  Ch.  436.  At  a  former  stage 
of  the  same  case,  Lord  Justice  Lixdley,  after  referring  to  the  recent 
alterations  in  pleading  and  procedure,  said  :  •'  We  must  take  care  not  to 
introduce  rules  which  would  preclude  parties  from  impeaching  a  settled 
account  on  the  ground  of  fraud,  and  at  the  same  time  we  must  not  treat 
settled  accounts  as  waste  paper."  Holgate  v.  Shutt  (C.  A.  June,  1884), 
27  Ch.  1).  Ill,  115;  53  L.  J.  Ch.  774. 

In  the  case  of  Daniell  v.  Sinclair,  which  came  before  the  Judicial 


SK(T.  III.  —  SETTLED    ACCOUNTS.  445 


No.  5  —  Dunbar  v.  Lem.       Notes. 


Committee  of  the  Privy  Council  on  appeal  from  New  Zealand  (1881), 
(i  App.  Cas.  181 :  50  L.  J.  1'.  C.  50,  a  mortgage  account  had  been  settled 
on  the  footing  of  compound  interest  with  half-yearly  rests,  both  nartie 
wrongly  understanding  the  mortgage  deed  to  authorise  interest  to  be  < 
charged.  It  was  decided  by  the  Judicial  Committee,  affirming  the  judg- 
ment of  tlie  Court  of  Appeal  in  New  Zealand,  that  the  settled  ace  unit 
might  he  re-opened  on  the  ground  of  the  mistake;  and  that  simple  inter- 
est only  should  be  charged. 

It  appeared  on  the  evidence  that  the  plaintiff  (mortgagor),  under  the 
belief  that  he  was  bound  to  pay  compound  interest  on  the  mortgy 
assented  to  accounts  made  out  on  the  footing  of  half-yearly  rests,  and 
that  in  particular,  on  an  account  being  sent  to  him  stating  a  certain  bal- 
ance as  due  on  the  11th  of  May,  1872,  part  of  which  consisted  of  com- 
pound interest  charged  on  the  footing  of  half-yearly  rests,  he  signed  it 
as  correct;  and  that  in  1876  he  sent  to  defendant  what  he  termed  a 
sketch  account,  in  which  compound  interest  with  half-yearly  rests  was 
calculated.  There  had  been  a  prior  settlement  of  the  account  in  1869 
on  a  similar  footing,  and  the  plaintiff  had  acknowledged  by  deed  the 
amount  then  made  out  as  due;  and  on  the  authority  of  Blackburn  v. 
Warwick  (1826),  2  Y.  &  C.  92,  it  had  been  in  effect  conceded  that  this 
could  not  be  disturbed.  But  the  defendant  had  contended  further  that 
a  direction  should  be  given  that  the  account  prior  to  the  14th  of  May, 
1872,  should  not  be  re-opened.  And  in  this  contention  he  failed,  as 
above  mentioned. 

AMERICAN   NOTES. 

An  account  will  not,  in  the  absence  of  fraud,  be  opened  ordinarily  upon  a 
general  charge  of  inaccuracy,  but  the  specific  errors  must  be  alleged.  Story 
Eq.  Jur.  §§  523,  527  ;  Young  v.  Hill,  67  New  York,  162.  "  Relief  will  be 
granted  as  the  circumstances  may  require,  either  by  setting  aside  the  settle- 
ment, or  by  permitting  a  party  to  surcharge  or  falsify."  2  Pomeroy  Eq.  Jur. 
§  871,  citing  Stuart  v.  Sears,  119  Massachusetts,  143;  Russell  v.  Church, 
65  Penn.  St.  9  ;  McCrae  v.  Mollis,  4  Desaussure  Equity  (So.  Carolina),  122  ; 
Monnin  v.  Beroujon,  51  Alabama,  196  ;  Waggoner  v.  Minler,  7  J.  J.  Marshall 
(Kentucky),  173.  See,  to  the  same  effect,  DanielPs  Chancery  Practice,  764; 
1  Reach  Eq.  Jur.,  §  63. 

When  a  party  seeks  to  open  a  settled  account  by  falsifying  any  particular 
item,  he  must  in  his  lull  state  the  real  objection,  and  the  omission  cannot  lie 
supplied  on  the  hearing.  By  Kent,  Chancellor,  in  Noursev.  Prime,  7  Johnson's 
Chancery  (New  York),  69  ;  11  Am.  Dec.  403. 

When  an  account  has  "been  settled,  balance  struck,  and  security  given  for 
its  payment,  a  party  complaining  of  fraud  or  mistake  must  allege  it  specifically, 
and  prove  the  allegation,  before  a  court  will  allow  him  to  unravel  the  account. 
Langdon  v.  Roane,  6  Alabama,  518:  41  Am.  Dec.  60. 


446  ACCOUNT. 


No.  6.  —  Brownwell  v.  Brownwell.  —  Rule. 


Settled  accounts  will  not  generally  be  opened,  but  at  most  only  liberty  will 
be  granted  to  surcharge  and  falsify,  unless  in  cases  of  apparent  fraud.  Brown  v. 
Vandyke,  4  Halsted  Chancery  (New  Jersey),  795 ;  55  Am.  Dec.  250 ;  Brutn 
v.  Hone,  2  Barbour  (New  York),  586. 

A  stated  and  settled  account  will  not  be  opened  in  equity  except  for  fraud* 
mistake,  or  manifest  error.  Rutty  v.  Person,  52  Superior  (New  York),  329; 
Hurley  v.  Eleventh  Ward  Bank,  76  New  York,  618. 

A  mistake  as  to  only  one  item  does  not  authorise  the  opening  of  the  account 
as  to  other  items.     Carpenter  v.  Kent,  101  New  York,  591. 

A  party  alleging  mistake  must  show  it,  and  furnish  the  data  for  correction  _ 
Chubbuck  v.  Vernam,  42  New  York,  432. 

Story  states  the  doctrine  with  great  clearness  and  accuracy  (1  Eq.  Jur. 
§  523),  as  follows  :  — 

"  If  therefore  there  has  been  an  account  stated,  that  may  be  set  up  by  way 
of  plea,  as  a  bar  to  all  discovery  and  relief,  unless  some  matter  is  shown 
which  calls  for  the  interposition  of  a  court  of  equity.  But  if  there  has  been 
any  mistake  or  omission,  or  accident,  or  fraud,  or  undue  advantage,  by  which 
the  account  stated  is  in  truth  vitiated,  and  the  balance  is  incorrectly  fixed,  a 
court  of  equity  will  not  suffer  it  to  be  conclusive  upon  the  parties,  but  will 
allow  it  to  be  opened  and  re-examined.  In  some  cases,  as  of  gross  fraud,  or 
gross  mistake,  or  undue  advantage,  or  imposition  made  palpable  to  the  court. 
it  will  direct  the  whole  account  to  be  opened  and  taken  de  novo.  In  other- 
cases,  where  the  mistake,  or  omission,  or  inaccuracy,  or  fraud,  or  imposition 
is  not  shown  to  affect  or  stain  all  the  items  of  the  transaction,  the  court  will 
content  itself  with  a  more  moderate  exercise  of  its  authority.  It  will  allow 
the  account  to  stand,  with  liberty  to  the  plaintiff  to  surcharge  and  falsify  it; 
the  effect  of  which  is  to  leave  the  account  in  full  force  and  vigour  as  a  slated 
account,  except  so  far  as  it  can  be  impugned  by  the  opposing  party,  who  has 
the  burden  of  proof  on  him  to  establish  errors  and  mistakes." 


No.  6.  — BROWNWELL  v.   BROWNWELL. 
(chancery,  1785.) 

RULE. 

An  account  settled  for  ten  years,  although  there  were  gross 
errors  in  it,  will  not  be  opened.  The  plaintiff  may,  how- 
ever, surcharge  and  falsify. 

Brownwell  v.  Brownwell. 

2  Brown  C.  C.  fed.  Belt)  fi2. 

This  was  a  bill  to  open  an  ace  1  ten  years  before  thfr 

bill  filed. 


SECT.  III.  —  SETTLED   ACCOUNTS.  447 

No.  6.  —  Brownwell  v.  Brownwell. 

It  was  a  devise  by  a  father  to  his  two  sons,  the  younger  of  whom, 
the  plaintiff,  was  a  minor,  and  the  elder,  the  defendant,  adult,  of 
four  sloops  in  the  Customs-House  service.  The  share  of  the  infant 
son  was  to  be  laid  out  for  his  benefit,  until  he  should  attain  the 
age  of  twenty-three  years,  then  to  be  paid  him  for  his  own  use ; 
and  if  he  should  die  before  that  age,  the  whole  was  to  go  to  the 
defendant.  The  defendant  took  possession  of  the  property,  and 
upon  the  22d  October,  1772,  he  met  the  plaintiff,  and  told  him  he 
had  stated  the  account;  and  there  was  a  balance  due  of  thirty-nine 
pounds,  which  he  paid  to  him  ;  and  the  plaintiff,  from  confidence 
in  his  brother,  accepted.  Afterwards  he  found  a  pocket-book  of 
his  father's,  in  which  the  value  of  the  ships  and  the  price  at  which 
they  were  let  to  government  were  stated ;  and  this  occasioned 
him  to  make  further  inquiry,  upon  which  he  found  several  gross 
false  charges  with  respect  to  the  price  at  which  the  ships  sold, 
and  the  wages  from  government.  The  defendant  had  given  credit 
for  less  than  half  he  had  received  ;  he  had  charged  for  repairs  of  one 
ship  double  the  sum  for  which  he  sold  the  ship  in  the  course  of 
the  year,  and  other  very  gross  errors ;  on  which  the  plaintiff  filed 
the  bill. 

Mr.  Scott  (for  the  plaintiff)  stated  this  case,  and  contended  it 
would  not  be  enough  to  surcharge  and  falsify,  but  that  the  whole 
account  must  be  opened.  Here  the  elder  brother  was  a  trustee  for 
the  defendant ;  all  the  articles  were  grossly  fallacious  ;  the  accounts 
were  different  in  the  different  answers.  No  vouchers  had  been 
given  up,  and  the  account  was  settled  in  confidence.  And  although, 
where  a  fair  and  just  account  is  settled  with  an  infant,  it  shall  not 
be  opened,  yet  where  it  is  unfair  it  shall  be  opened,  2  Atkyns,  119, 
even  notwithstanding  death  has  intervened. 

Mr.  Price  and  Mr.  Mansfield  (for  the  defendant)  insisted  that  the 
elder  brother  was  not  in  this  case  a  trustee  for  the  younger ;  the 
settlement  was  at  the  end  of  two  years  after  he  became  entitled  to 
the  moiety.  Only  four  articles  in  the  account  are  attacked,  and 
the  plaintiff  wants  to  have  the  whole  unravelled.  The  plaintiff 
had  the  account  sent  to  him  before  the  payment  of  the  balance;' 
and  there  is  no  proof  in  the  cause  of  the  surprise  charged  in 
settling  of  it. 

Master  of  the  Eolls.  This  case  has  not  been  overrated,  in 
saying  the  brother  was  a  trustee  for  the  plaintiff.  It  is  to  be 
wished,  in  settling  such  an  account,  that  the  vouchers  should  be 


448  ACCOUNT. 

No.  6.  —  Brownwell  v.  Brownwell.  —  Notes. 

forced  upon  a  young  man.  If  the  application  had  been  recent,  I 
should  think  this  a  case  for  opening  the  account  ;  but  where  there 
has  been  an  acquiescence  for  eleven  years,  the  labouring  oar  is 
upon  the  party  calling  for  the  account.  There  are  several  items  in 
this  account  objected  to  with  great  force.  The  £52  10s.  for  sun- 
dries :  as  to  this,  if  I  were  to  let  in  the  objection,  I  should  throw 
innumerable  difficulties  in  the  defendant's  way,  as  the  charge  con- 
sists of  many  articles.  The  £50  received  at  the  Custom-house  : 
upon  this  alone  I  should  not  send  it  to  the  Master.  But  there  are 
other  items  of  a  different  nature :  £47  is  charged  as  paid  to  the 
auctioneer,  who  swears  to  have  received  only  £12  6s.  If  this  can  be 
explained,  it  will  be  right  to  put  it  in  the  way  of  being  so.  So  of 
the  sale  of  the  ship  Hollis,  it  is  fit  that  should  be  inquired  into. 
The  matter  is  not  sufficient  to  open  the  whole  account,  but  it  is 
sufficient  to  answer  the  calls  of  justice  to  let  the  plaintiff  falsify  the 
price  of  the  Hollis,  the  sum  paid  to  the  auctioneer,  and  the  Custom- 
house account. 

Note  by  Editor  (Mr.  Belt).  The  plaintiff  having  falsified  the 
accounts  before  the  Master,  to  the  amount  of  £200  and  upwards, 
the  cause  came  on  for  further  directions  on  the  24th  of  May,  1787, 
when  his  Honour  decreed  the  defendant  to  pay  the  balance,  with 
£4  per  cent,  interest  and  costs.     Reg.  Lib.  1786  A.  fol.  432  B. 

AMERICAN   NOTES. 

See  ante,  p.  445.  Mr.  Pomeroy  says  (2  Pomeroy  E'q.  Jur.  §  820)  :  "  Parties 
who  have  long  acquiesced  in  settlements  of  accounts  ov  other  mutual  dealings 
are  not  permitted  to  reopen  or  disturb  them,"  citing  Bright  v.  Legerton,  6  Jur. 
N.  s  ,  1170;  Clarke  v.  Hart,  5  id.  447,  referring  to  remarks  of  Lord  Chelms- 
ford in  the  last  case.  See  Galway  v.  Metropolitan  Ry.  Co.,  128  New  York, 
132.  The  doctrine  of  laches  in  equity  generally  is  discussed  in  note,  23 
Am.  St.  Rep.  148,  and  in  Galway  v.  Metropolitan  Ry.  Co.,  128  New  York,  132. 
The  general  doctrine,  applied  in  the  principal  case  to  accounts  stated,  is 
recognised  in  this  country.  "A  court  of  equity  will  not,  in  an  action  of 
accounting,  aid  the  enforcement  of  stale  claims."  2  Beach  Eq.  Jur.  §  843. 
Sec  Johnson  v.  Toulmin,  18  Alabama,  50;  52  Am.  Dec.  212;  Smith  v.  Thomp- 
son, 7  Grattan  (Virginia),  112;  54  Am.  4)ec.  120,  and  note  130;  Drunkard  v. 
Ingram,  21  Texas,  650 ;  73  Am.  Dec.  250 ;  also  note,  12  Am.  Dec.  371,  citing 
principal  case. 


SECT.  TV.  —  BETWEEN    TENANTS    IX    COMMON.  449 


No.  7.  —  Henderson  v.  Eason.  —  Rule. 


Section  IV.  —  Accounts  between   Tenants  in  Common. 

No.  7.  —  HENDEKSON"   v.   EASOK 
(ex.  ch.  from  q.  b.  1851.) 

RULE. 

If  there  are  tenants  in  common,  and  one  tenant  alone 
possesses  the  property,  he  is,  under  the  Statute  4,  Ann.  c. 
16,  §  27  (though  not  at  common  law),  answerable  as  bailiff 
to  his  co-tenant  in  an  action  of  account,  if  he  receives  more 
than  comes  to  his  just  share,  but  not  otherwise. 

But  it  has  been  decided  by  the  Exchequer  Chamber, 
overruling  the  judgment  of  the  Queen's  Bench,  that  the 
tenant  does  not  receive  more  than  his  share  within  the 
statute,  if  he  merely  has  the  sole  enjoyment  of  the  prop- 
erty, even  though  by  the  aid  of  his  own  industry  and 
capital  he  makes  a  profit  of  the  enjoyment,  and  takes  the 
whole  of  that  profit. 

Henderson  v.  Eason. 

21  L.  J.  Q.  B.  82;  (s.  c.  17  Q.  B.  (Ad.  &  Ell.  jr.  s.)  701). 

This  was  an  action  of  account,  brought  in  pursuance  of  an  order 
of  the  Lord  Chancellor,  who  was  not  satisfied  with  the  decision  of 
the  Court  of  Queen's  Bench,  in  favour  of  the  plaintiff,  in  a  previous 
action  of  account,  brought  by  order  of  the  Court  of  Chancery. 

The  pleadings  and  facts  sufficiently  appear  from  the  judgment  of 
the  court  (Parke,  B.,  Alderson,  B.,  Maule,  J.,  Creswell,  J.,  Wil- 
liams, J.,  and  Martin,  B.),  which  was  delivered  by 

Parke,  B.  This  case  was  heard  before  us  at  the  sittings  after 
last  Trinity  Term.  It  was  an  action  of  account,  founded  on  the 
statute  of  the  4  Anne,  c.  16,  by  Robert  Eason  against  the  executor 
of  his  co-tenant  in  common,  Edward  ICason.  The  declaration  states 
that  the  Easons  were  co-tenants  in  common  in  fee  in  equal  undi- 
vided moieties  of  messuages  and  lands ;  that  Edward  Eason  had 
managed  the  whole,  and  had  received  and  taken  the  rents  and 
profits  thereof  for  the  common  profit  of  the  plaintiff  and  Edward 

VOL.   I.  —  -'» 


450  ACCOUNT. 

No.  7.  —  Henderson  v.  Eason. 

Eason  deceased,  and  as  bailiff  of  the  plaintiff  of  what  Edward 
Eason  received  more  than  his  just  share  and  proportion  thereof,  to 
render  a  reasonable  account  thereof  to  the  plaintiff  and  his  said 
share  thereof  according  to  the  form  of  the  statute.  There  is  an 
averment  that  Eason  in  his  lifetime  received  more  than  his  just 
share  and  proportion  of  the  rents,  issues,  and  profits  of  the  said 
tenements,  —  that  is  to  say,  the  whole  of  the  rents,  issues,  and 
profits,  —  and  had  not  rendered  an  account  to  the  plaintiff.  There 
were  two  pleas  to  the  declaration.  The  first  traverses  that  Edward 
Eason  had  the  care  and  management  of  the  whole  of  the  said 
tenements,  to  receive  and  take  the  rents  and  profits  thereof  to  the 
common  profit  of  the  plaintiff  and  Edward  Eason  as  the  bailiff  to 
the  plaintiff,  and  of  what  he  received  more  than  his  just  share  and 
proportion,  to  render  a  reasonable  account  to  the  plaintiff  according 
to  the  statute.  The  second  plea  denied  that  Eason  received  more 
than  his  just  share  and  proportion  of  the  rents,  issues,  and 
profits. 

Issue  being  joined  on  these  pleas,  evidence  was  given  that  the 
two  Easons  were  tenants  in  common,  in  fee,  of  a  messuage  and 
farm,  and  about  132  acres  of  land,  from  November,  1833,  to  No- 
vember, 1S39,  during  which  time  Edward  Eason  occupied  the  whole 
on  his  own  account,  the  plaintiff  occupying  no  part ;  that  he  culti- 
vated the  same  on  his  own  account  solely,  and  appropriated  the 
produce  to  his  own  use,  and  that  he  cropped  the  farm  in  the  usual 
wa\  and  kept  the  usual  quantity  of  live  and  dead  stock,  and 
farmed  well,  and  that  he  received  all  the  produce  of  the  farm  and 
sold  it  on  his  own  account. 

On  tire  trial,  before  my  Brother  Coleridge,  the  plaintiff's  counsel 
insisted  that  this  evidence  was  conclusive  on  the  first  issue,  and 
] 'resumptive  evidence  on  the  last  issue  in  favour  of  the  plaintiff, 
and  so  the  learned  Judge  held,  in  compliance  with  the  ruling  of  the 
Court  of  Queen's  Bench  on  a  special  case  between  the  same  parties. 
That  case  was  stated  by  leave  of  a  judge*  in  an  action  brought  by 
order  of  the  late  Vice  Chancellor  of  England.  The  Lord  Chan- 
cellor, we  are  told,  was  dissatisfied  witli  that  proceeding  for  certain 
reasons  wholly  immaterial  to  be  inquired  into  by  us,  and  directed 
this  action  to  be  brought,  in  which  the  important  question  between 
these  parties  is  to  be  settled.  There  is  no  doubt  as  to  the  law 
before  the  statute,  the  4  Anne,  c.  16 :  if  one  tenant  in  common 
occupied  and  took  the  whole   profits,   the    other  had  no   remedy 


SECT.  IV.  —  BETWEEN    TENANTS    IN    COMMON.  451 

No.  7.  —  Henderson  v.  Eason. 

against  him  while  the  tenancy  in  common  continued,  unless  he 
was  put  out  of  possession,  when  he  might  have  his  ejectment,  or 
unless  he  appointed  the  other  to  be  his  bailiff  as  to  his  undivided 
moiety,  and  the  other  accepted  that  appointment,  in  which  case  an 
action  of  account  would  lie  as  against  the  bailiff  as  in  the  case 
of  the  owner  of  the  entirety  of  an  estate.  Until  the  Statute  of 
Anne  this  state  of  the  law  continued.  That  Statute  provides,  by 
§  27,  that  an  action  of  account  may  be  brought  and  maintained  "  by 
one  joint  tenant  and  tenant  in  common,  his  executors  or  adminis- 
trators, against  the  other  as  bailiff  for  receiving  more  than  conies 
to  his  just  share  and  proportion,  and  against  the  executor  and 
administrator  of  such  joint  tenant  or  tenants  in  common."  Decla- 
rations framed  on  this  statute  vary  from  those  at  common  law,  and 
it  is  an  essential  averment  in  them  that  the  defendant  has  received 
more  than  his  share.  That  was  held  in  the  case  of  Wheeler  v. 
Home,  Willes,  208,  and  Sturton  v.  Richardson,  13  M  &  W.  17; 
13  L.  J.  Exch.  281.  Under  the  Statute  of  Anne  a  tenant  in  com- 
mon is  bailiff  only  by  virtue  of  his  receiving  more  than  his  just 
share,  and  as  soon  as  he  does  so  is  answerable  only  for  so  much 
as  he  actually  receives,  as  is  fully  explained  by  Lord  Chief 
Justice  Willes  in  the  case  above  cited  :  he  is  not  responsible 
as  bailiff  at  common  law  for  what  he  might  have  made  without 
his  wilful  default.  It  is  to  be  observed,  the  Statute  does  not  men- 
tion lands  and  tenements,  or  any  particular  subject ;  every  case  in 
which  a  tenant  in  common  receives  more  than  his  just  share  is 
within  the  statute,  and  an  account  will  lie  when  he  does  so  receive, 
but  not  otherwise.  It  is  to  be  observed,  also,  the  receipt  of  rents, 
issues,  and  profits  is  not  mentioned,  but  simply  the  receipt  of  more 
than  comes  to  his  just  share  ;  and,  further,  he  is  to  account  when  he 
receives  and  takes  more  than  comes  to  his  just  share.  What,  then, 
is  a  receiving  of  more  than  comes  to  his  just  share  within  the 
meaning  of  the  provisions  of  the  Statute  of  Anne  ?  It  appears  to 
us  that,  construing  the  Act  according  to  the  ordinary  meaning  of 
the  words,  this  provision  of  the  Statute  applies  only  to  cases  where 
one  tenant  in  common  receives  the  money  or  something  else  from 
another  person  to  which  both  co-tenants  are  entitled,  simply  by 
reason  of  their  being  tenants  in  common  and  in  proportion  to 
their  interest  as  such,  and  of  which  the  one  receives  and  keeps 
more  than  his  just  share  according  \n  that  proportion.  The  Statute, 
therefore,  includes  all  rf><*  ■  ■  tenants  of  land  leased 


452  ACCOUNT. 

No.  7.  —  Henderson  v.  Eason. 

to  a  third  party  at  a  rent  payable  to  each,  or  where  there  is  a  rent- 
charge,  or  any  money  payment,  or  payment  in  kind  due  to  them 
from  another  person,  and  where  one  receives  the  whole  or  more 
than  his  proportionate  share  according  to  his  interest  in  the  sub- 
ject of  the  tenancy.  There  is  no  difficulty  in  ascertaining  the 
share  of  each,  and  determining  when  one  has  received  more  than 
his  just  share  ;  and  if  he  has,  he  becomes  as  such  receiver  in  that 
case  the  bailiff  of  the  other,  and  must  account.  But  when  we 
seek  to  extend  the  meaning  of  the  Statute  beyond  the  ordinary 
meaning  of  its  words,  and  to  apply  it  to  cases  in  which  one  has 
enjoyed  more  of  the  benefit  of  the  subject,  or  mads  more  by  its 
occupation  than  the  other,  we  have  insuperable  difficulties  to  en- 
counter. There  are  obviously  many  cases  in  which  a  tenant  in 
common  may  occupy  and  enjoy  the  land  or  other  subject  of 
tenancy  in  common  solely,  and  have  all  the  advantage  to  be  de- 
rived from  it,  and  yet  it  would  be  most  unjust  to  make  him  pay 
anything.  For  instance,  if  a  dwelling-house  or  room  is  solely 
occupied  by  one  tenant  in  common  without  ousting  the  other,  or 
a  chattel  is  used  by  one  tenant  in  common  and  nothing  is  received, 
it  would  be  most  inequitable  to  hold  that  by  the  simple  act  of 
occupation  or  user,  without  any  agreement,  he  should  be  liable  to 
pay  a  rent  or  anything  in  the  nature  of  compensation  to  his  co- 
tenant  for  that  occupation,  to  which,  to  the  full  extent  to  which  he 
enjoyed,  he  had  a  perfect  right.  It  appears  impossible  to  hold  such 
a  case  to  be  within  the  Statute,  and  an  opinion  to  that  effect  was 
expressed  by  Lord  Cottenham  in  M'Mahon  v.  Burchell,  2  Ph.  127. 
Such  cases  are  clearly  out  of  the  operation  of  the  Statute.  Again, 
there  are  many  cases  where  profits  are  made  and  are  actually 
taken  by  one  co-tenant,  yet  it  is  impossible  to  say  that  he  has  re- 
ceived more  than  comes  to  his  just  share.  For  instance,  if  one 
tenant  employs  his  capital  and  industry  in  cultivating  the  whole  of 
the  piece  of  land,  the  subject  of  the  tenancy,  in  a  mode  in  which 
the  money  and  labour  expended  greatly  exceeds  the  value  of  the 
rent  or  compensation  for  the  mere  occupation  of  the  land,  —  in 
raising  hops,  for  example,  which  is  a  very  hazardous  adventure, — 
and  he  takes  the  whole  of  the  crops,  is  he  to  be  accountable  for 
any  of  the  profits  in  such  a  case,  where  it  is  clear  if  the  specula- 
tion had  been  a  losing  one  altogether  he  could  not  have  called  for 
a  moiety  of  the  loss,  as  he  would  have  been  enabled  to  do  had  it 
been  so  cultivated  by  the  mutual  agreement  of  the  co-tenants  ? 


SECT.  IV.  —  BETWEEN    TENANTS    IX    COMMON.  453 


No.  7.  —  Henderson  v.  Eason.  —  Notes. 


The  risk  of  the  cultivation  and  the  profits  and  the  loss  are  his  own, 
and  what  is  just  with  respect  to  the  very  uncertain  and  expensive 
crop  of  hops,  is  also  just  with  respect  to  all  the  product'  of  the 
land, —  the  fructus  industriales  which  are  raised  by,  the  capital  and 

industry  of  the  occupier,  and  could  not  exist  without  it.  In  taking- 
all  the  produce,  he  cannot  he  said  to  receive  more  than  his  just 
share  and  proportion  to  which  he  is  entitled  as  tenant  in  common, 
as  he  receives  in  truth  the  remuneration  for  his  own  labour  and 
capital  to  which  a  tenant  has  no  right.  In  the  Anonymous  Case 
before  Lord  North  (Skin.  230),  in  which  it  was  said,  "  If  one  of  four 
tenants  in  common  stock  the  land  and  manage  it,  the  rest  shall 
have  an  account  of  the  profits  ;  but  if  a  loss  come,  —  as  if  the  sheep, 
&c,  die,  —  they  shall  bear  a  part,"  it  is  evident  from  the  context 
Lord  North  is  speaking  of  a  case  where  one  tenant  in  common 
manages  by  the  mutual  agreement  of  all  for  their  common  benefit, 
for  he  gives  as  an  illustration  the  right  of  a  part  owner  of  a  ship 
to  an  account  when  the  voyage  is  undertaken  by  his  consent, 
express  or  implied.  When  the  natural  produce  of  the  land  is 
augmented  by  the  capital  and  industry  of  the  tenant,  —  in  the  case 
of  grass,  for  instance,  by  manuring  and  draining,  —  and  the  tenant 
sells  it,  or  by  feeding  his  cattle  he  makes  a  profit  of  it,  the  case 
seems  to  be  neither  within  the  words  nor  the  spirit  of  the  Act, 
for  the  profits  of  the  grass  are  f nidus  industriales.  It  may  be 
observed,  however,  that  the  evidence  in  the  bill  of  exceptions  does 
not  raise  either  of  these  points.  We  therefore  think,  that,  upon 
the  evidence  set  out  in  this  case,  there  was  nothing  to  warrant  the 
jury  in  coming  to  the  conclusion  that  the  defendant's  testator 
received  more  than  his  just  share  within  the  meaning  of  the  stat- 
ute, and  that  the  direction  of  the  learned  Judge,  as  to  the  second 
issue,  was  therefore  wrong;  and  we  also  think  there  was  no  con- 
clusive or  sufficient,  or  indeed  any  evidence,  that  he  had  the  care 
and  management  of  the  farm,  for  the  common  profit  of  the  plain- 
tiff and  the  testator,  as  averred  in  the  declaration.  We  therefore 
think  that  there  should  be  judgment  to  reverse  the  judgment  of 
the  Court  of  Queen's  Bench,  and  for  a  venire  de  novo. 

Judgment  reversed. 

ENGLISH   NOTES. 

.The  position  of  a  tenant  in  common,  where  the  other  tenant    in  com- 
mon was  in  actual  occupation  of  the  land,  was  thus,  at  common  law. 


454  ACCOUNT. 


No.  7.  —  Henderson  v.  Eason.  —  Notes. 


very  unsatisfactory.  The  only  remedy  was  by  a  writ  or  suit  for  par- 
tition. At  common  law  a  writ  of  partition  only  lay  between  parceners; 
but  by  Statutes  31  Hen.  VIII.  c.  1  and  32  Hen.  VIII.  c.  32  the  right  was 
given  to  every  tenant  in  common  or  joint  tenant  of  manors,  lands,  tene- 
ments, and  hereditaments.  The  writ  at  law  was  in  practice,  however, 
superseded  by  the  more  convenient  remedy  of  a  suit  l  Chancery;  and 
—  except  where  the  special  statutory  jurisdiction  (under  8  &  9  Vict, 
c.  118,  §§  147,  148  and  various  amending  acts)  of  the  Inclosnre  Com- 
missioners, now  merged  in  the  Board  of  Agriculture,  was  resorted  to  — 
a  suit  in  Chancery  for  partition  was  the  only  remedy.  The  Partition 
Act.  1868  (31  &  32  Vict.  c.  40).  which  enabled  tin-  court  to  decree  a 
sale  in  lieu  of  partition,  with  tin-  amending  Act  of  1876  (39  &  40  Vict. 
c.  17),  has  given  a  more  complete  remedy  to  the  tenant  in  common  who 
is  kept  out  of  his  rights,  or  who  in  any  way  finds  his  position  as  owner 
of  an  undivided  right  inconvenient,  In  an  action  for  partition  or  sale, 
where  one  of  the  parties  is  in  occupation,  the  modern  practice  is  to 
make  an  order  before  the  hearing,  for  a  receiver,  unless  that  party  elects 
to  pay  an  occupation  rent.     Porter  v.  Lopes  (1877),  7  Ch.  D.  358. 


AMERICAN    NOTES. 

Mr.  Beach  says  (2  Eq.  Jur.  §  819):  "Every  case  in  which  a  tenant  in 
common  receives  more  than  his  share  is  within  the  statute  (4  Anne,  c.  10, 
§  07)  ;  and  account  will  lie  where  he  does  rea  ice,  but  not  otherwise.  He  is  to 
account  when  he  receives,  not  takes,  more  than  comes  to  his  just  share." 
Citing  the  principal  case.  "  This  construction  is  followed,"  he  continues,  "  in 
Sarqent  v.  Parsons,  12  Massachusetts,  149  ;  Wooleoer  v.  Knapp,  18  Barbour, 
265;   Crane  v.  Waggoner,  27  Indiana,  52;  Ragan  v.  McCoy,  29  Missouri,  307." 

Mr.  Pomeroy  says  (3  Eq.  Jur.  2100,  note)  :  "  This  statute  "  (of  Anne)  "  has 
been  substantially  re-enacted  in  many  of  the  American  States,  but  the  equity 
jurisdiction  exists  notwithstanding." 

The  doctrine  of  the  principal  case  is  denied  in  Early  v.  Friend,  10  Grattan 
(Virginia),  21  ;  78  Am.  Dec.  019  ;  and  this  view  is  taken  in  Leach  v„  Beatties, 
33  Vermont,  195;  Dodson  v.  Hays,  29  West  Virginia,  577;  Almy  v.  Daniels, 
15  Rhode  Island,  312  ;  Huff  v.  McDonald,  22  Georgia,  131  ;  08  Am.  Dec. 
187;  McPherson  v.  McPherson,  11  Iredell  Law  (No.  Carolina),  391  ;  53  Am. 
Dee.  410. 

Where  the  occupancy  of  one  tenant  is  exclusive,  entire,  and  beneficial,  and 
at  a  profit  to  him,  he  is  bound  to  account  to  his  co-tenants  for  the  excess  of 
his  receipts  above  his  proportion;  and  so,  if  not  being  an  occupant,  he  has 
received  more  than  his  share.  Almy  v.  Daniels,  15  Rhode  Island,  312;  Edsall 
v.  Merrill,  37  New  Jersey  Equity,  114  ;  Annely  v.  De  Saussure,  26  South  Caro- 
lina. 497  ;  4  Am.  St,  Rep.  725;  Bird  v.  Bird,  15  Florida,  424;  21  Am.  Rep. 
290;  Hancock  v.  Day,  1  McMullan  Equity  (So.  Carolina),  09 :  36  Am.  Dec. 
293  ;  Kean  v.  Connelly,  25  Minnesota,  222. 


SECT.  IV.  —  BETWEEN    TENANTS    IN    COMMON.  455 

No.  7.  —  Henderson  v.  Eason.  —  Notes. 

In  Early  v.  Friend,  supra  (a,  d.  1860),  the  court  observe  of  the  principal 
case:  "  It  is  somewhat  remarkable  that  its  construction"  (i  e.,  thai  of  the 
statute)  "  had  not  there  been  settled  long  before.  And  it  would  seem  that 
until  that  decision  was  made,  the  current,  or  at  leasl  the  preponderance  of 
judicial  opinion  in  that  country,  was  the  other  way."  "  With  ail  deference  to 
the  Court  of  Exchequer  Chamber,  1  think  the  construction  they  put  upon  the 
word  'receiving'  is  too  technical  and  narrow,  at  least  for  our  country;  and  if 
it  be  a  just  one  in  England,  it  is  because  of  circumstances  existing  there 
which  do  not  exist  here."  It  "maybe  a  reasonable  one  in  England,  where 
the  ordinary  mode  of  deriving  profit  from  real  estate  is  by  renting  it  out  ;  but 
not  in  tliis  State,  where  real  estate  is  generally  occupied  and  used  by  the 
owners."  The  principal  ease  is  also  disapproved  in  Hayden  v.  Merrill,  44 
Vermont,  336;  8  Am.  He}).  372,  the  court  pronouncing  "in  favour  of  a  more 
liberal  constxuetion,"  and  approving  Lord  Denman's  views  in  the  Queen's 
Bench,  as  "calculated  more  fully  to  cure  the  mischief  or  supply  the  defect  of 
the  common  law,  and  thereby  more  completely  to  accomplish  the  purpose  of 
the  statute."  This  holding  is  followed  in  Dodson  v.  Hays,  29  West  Virginia, 
001,  in  which  the  doctrine  is  thus  summarised :  "1.  One  tenant  in  common 
may  maintain  a  suit  in  equity  against  his  co-tenant,  who  has  occupied  the 
whole  of  the  common  property,  for  an  account  of  rents  and  profits.  2.  When- 
ever the  nature  of  the  property  is  such  as  not  to  admit  of  its  use  by  several, 
and  it  is  used  and  occupied  by  one  only  of  the  tenants  in  common,  or  when- 
ever the  property,  though  capable  of  use  and  occupation  by  several,  is  yet  so 
used  and  occupied  by  one  as  in  effect  to  exclude  the  others,  he  receives  more 
than  comes  to  his  just  share  and  proportion  in  the  meaning  of  the  statute. 
•').  When  the  common  property  is  rented  out  by  one  tenant  in  common,  he  is 
accountable  to  his  co-tenants  for  their  share  of  the  rents  which  he  has  received. 
And  when  he  occupies  and  uses  the  whole  property  himself,  he  is  liable  to  his 
co-tenants  for  a  reasonable  rent  for  it  in  the  condition  in  which  it  was  when 
he  took  possession."  The  same  doctrine  is  approved  in  Almy  v.  Daniels,  15 
Rhode  Island,  317. 

The  doctrine  of  the  principal  case  however  is  laid  down  in  Israel  v.  Israel 
(a.  d.  1808),  30  Maryland,  120;  90  Am.  Dec.  571,  citing  the  principal  case. 
and  in  Woolever  v.  Knapp,  18  Barbour  (Xew  York),  205  ;  Sargent  v.  Parsons,  12 
Massachusetts,  153;  Izard  v.  Bodine,  11  New  Jersey  Equity,  403;  00  Am.  Dec. 
595;  and  Pico  v.  Columbet,  12  California,  411 ;  73  Am.  Dec.  550,  citing  the 
principal  case  and  observing:  "These  decisions  are  clear  and  full  to  the  point 
that  one  tenant  in  common  cannot  be  held  liable  to  his  co-tenants  for  use  and 
occupation  of  the  common  property,  unless  there  has  been  an  ouster  of  his 
co-tenants."  The  principal  case  is  also  cited  and  approved  in  McCord  v.  Oak- 
land Quicksilver  M.  Co.,  04  California,  134;  40  Am.  Rep.  080.  The  same 
doctrine  is  announced  in  Nelson's  Heirs  v.  Clay's  Heirs,  7  J.  J.  Marshall 
(Kentucky),  138  ;  23  Am.  Dec.  387  ;  Young  v.  Adams,  14  B.  Monroe  (Ken- 
tucky), 127;  58  Am.  Dee.  054;  Hamby  v.  Wall,  48  Arkansas,  135;  3  Am. 
St.  Rep.  218  (citing  Fielder  v.  Childs,  73  Alabama,  507;  House  v.  Hause,  29 
Minnesota,  252;  Reynolds  v.  Wilmelh,  45  Iowa,  093);  Ercrls  v.  Beach,  31 
Michigan,  130  ;  18  Am.   Rep.    109 ;   Crane  v.  Waggoner,  27  Indiana,  52  ;   Le- 


456  ACCOUNT. 


No.  7.  —  Henderson  v.  Eason.  —  Notes. 


Ban-on  v.  Babeock,  122  New  York,  153;  19  Am.  St.  Rep.  488,  citing  the  prin- 
cipal case  ;  Kean  v.  Connelly,  25  Minnesota,  222  ;  33  Am.  Rep.  458.  In  the 
last  case  (a.  d.  1878)  the  court  observe :  — 

"  In  Henderson  v.  Eason,  17  Q.  B.  701,  on  appeal  from  the  court  of  Queen's 
Bench  to  the  Exchequer  Chamber,  the  passage  above  quoted  from  the  statute 
of  4  and  5  Anne  was  fully  considered,  and  was  held  'to  apply  only  to  t In- 
cases where  the  tenant  in  common  receives  money  or  something  else,  where 
another  person  gives  or  pays  it,  which  the  co-tenants  are  entitled  to  simply 
by  reason  of  their  being  tenants  in  common,  and  in  proportion  to  their 
interests  as  such,  and  of  which  one  receives  and  keeps  more  than  his  just 
share  according  to  that  proportion.'  McMahon  v.  Burchell,  2  Phil.  134  (22 
Eng.  Ch.  125),  is  to  the  same  effect.  In  Woo/ever  v.  Knapp,  18  Barb.  205, 
the  statute  of  New  York  came  under  consideration.  It  was  held  to  be  sub- 
stantially the  same  as  the  statute  of  Anne,  and  the  court  followed  Henderson 
v.  Eason,  supra,  holding  that  one  of  the  several  tenants  in  common,  who 
possesses  the  entire  premises,  without  any  agreement  with  the  others  as  to 
his  possession,  or  any  demand  on  their  part  to  be  allowed  to  enjoy  the  prem- 
ises with  him,  is  not  liable  to  account  to  his  co-tenants  for  the  use  and  occupa- 
tion of  the  premises.  This  case  is  approved  and  followed  in  Dresser  v.  Dresser, 
40  Barb.  300  ;  in  Elwell  v.  Burnside,  44  id.  447  ;  Wilcox  v.  Wilcox,  48  id.  327  ; 
in  Scott  v.  Guernsey,  00  id.  163,  and  has  not,  so  far  as  we  discover,  been 
criticised  or  disapproved  in  any  of  the  courts  of  New  York.  In  Crane  v. 
Waggont  r,  27  Ind.  52,  the  statute  of  Indiana  above  referred  to  was  considered ; 
and  citing  and  following  Henderson  v.  Eason,  and  Woolever  v.  Knapp,  the 
court  held,  that  the  statute  applied  only  to  cases  '  where  rent  and  payment  in 
money  or  in  kind,  due  in  respect  of  the  premises,  is  received  from  a  third 
party  by  one  co-tenant,  who  retains  for  his  own  use  the  whole,  or  more  than 
his  proportionate  share,'  and  that  one  tenant  in  common,  unless  he  has  been 
excluded  from  possession  by  his  co-tenant,  cannot  maintain  an  action  against 
the  latter  for  use  and  occupation.  Ragan  v.  McCoy,  29  Missouri,  350,  is  to 
the  same  effect.  See  also  Israel  v.  Israel,  30  Maryland,  120  ;  Izard  v.  Bodine, 
3  Stockt.  403  ;  Davidson  v.  Thompson,  22  New  Jersey  Eq.  83 ;  Pico  v.  Columbet, 
12  California,  414 ;  Peck  v.  Carpenter,  7  Gray,  283  ;  Freeman  on  Co-tenancy, 
§§  258,  270,  275,  270.  A  different  view  of  the  liability  of  a  tenant  in  com- 
mon is  taken  in  Tliompson  v.  Bostick,  1  McMullan's  Eq.  (So.  Carolina)  75  ;  in 
Early  v.  Friend,  16  Gratt.  47;  in  Shiels  v.  Stark,  14  Georgia,  435;  in  Hayden 
v.  Merrill,  44  Vermont,  348;  8  Am.  Rep.  372;  but  we  think  that  Mr. 
Freeman  is  warranted  in  asserting  that  '  the  decided  preponderance  of  the 
authorities,  both  in  England  and  in  America,  affirms  the  right  of  each  co- 
tenant  to  enter  upon  and  hold  exclusive  possession  of  the  common  property. 
and  to  make  such  profit  as  he  can  by  proper  cultivation  or  other  usual  means 
of  acquiring  benefit  therefrom,  and  to  retain  the  whole  of  such  benefits,  pro- 
vided that  in  having  such  possession,  and  in  making  such  profits,  he  has  not 
been  guilty  of  an  ouster  of  his  co-tenant,  nor  hindered  the  latter  from  enter- 
ing upon  the  premises  and  enjoying  them  as  he  had  a  right  to  do-  The 
reasoning  upon  which  these  decisions,  constituting  the  great  bulk  of  the 
authorities  on  this  subject,  rest,  is  that  as  each  co-tenant  has  at  all  times 


SECT.  IV.  —  BETWEEN  TENANTS  IN  COMMON.         457 

No.  7.  —  Henderson  v.  Eason.  —  Notes. 

the  right  to  enter  upon  and  enjoy  every  part  of  the  common  estate,  this  right 
cannot  be  impaired  by  (he  fact  that  another  of  the  co-tenants  absents  himself, 

or  does  not  choose  to  claim  his  right  to  an  equal  and  common  enjoy nt  ; 

that  it  would  be  inequitable  to  compel  a  co-tenant  in  possession  to  account  for 
the  profits  realised  out  of  his  skill,  labour,  and  business  enterprise,  when  he 
has  no  right  to  call  upon  his  co-tenant  to  contribute  anything  towards  the 
production  of  these  profits,  nor  to  bear  his  proportion,  when  through  had 
years,  failure  of  crops,  or  other  unavoidable  misfortunes,  the  use  made  of  the 
estate  resulted  in  a  loss,  instead  of  a  profit,  to  the  one  in  possession.'  Free- 
man on  Co-tenancy,  Sec.  258." 

In  Izard  v.  Bodine,  3  Stockton  Chancery  (New  Jersey),  403  ;  69  Am.  Dec. 
595,  the  court  said  :  "  The  following  propositions,  as  laid  down  by  the  coun- 
sel of  the  defendant,  are  well  established  :  1.  If  one  tenant  in  common  occu- 
pies the  whole  estate,  claiming  it  as  his  own,  it  is  an  ouster  of  his  co-tenant, 
who  must  first  establish  his  right  at  law,  and  thus  recover  the  mesne  profits, 
for  one  tenant  is  bound  to  account  to  another  only  as  his  bailiff  appointed  by 
contract,  express  or  implied.  2.  Where  one  tenant  in  common  actually 
receives  the  rents,  issues,  and  profits,  then  lie  may  he  compelled  to  account 
for  such  profits  actually  received;  but  this  is  by  statute,  both  in  England  and 
this  State,  and  not  by  the  common  law.  4  Anne,  ch.  16;  N.  T.  Act  of  1794, 
Nix.  Dig.  5,  pi.  3  ;  Sargent  v.  Parsons,  12  Mass.  153.  3.  Where  one  tenant  in 
common  occupies  the  whole  estate,  without  claim  on  the  part  of  his  co-tenants 
to  be  admitted  into  possession,  he  is  under  no  obligation  to  account,  for  he 
had  a  right  to  such  occupancy.  Co.  Litt.  200  6  ,  Sargent  v.  Parsons,  12  Mass. 
152,  153;  Meredith,  v.  Am/Ires,  7  Iredell  Law,  5;  45  Am.  Dec.  501;  Colburn  v. 
Mason,  25  Maine,  434;  43  Am.  Dec.  292." 

Referring  to  the  principal  case,  the  court  in  Bird  v.  Bird,  15  Florida,  424; 
21  Am.  Rep.  299,  observe  that  its  doctrine  has  obtained  in  Massachusetts, 
California,  New  York,  Kentucky,  Maryland,  New  Jersey,  and  Missouri,  but  is 
denied  in  Virginia,  Vermont,  South  Carolina,  and  Georgia. 

The  doctrine  of  New  Jersey  is  thus  stated  more  recently  in  Edsall  v.  Mer- 
rill, 37  New  Jersey  Equity,  117:  "The  principle  adopted  maybe  stated  as 
follows  :  Where  the  tenant  in  possession  has  prevented  his  co-tenants  from 
obtaining  from  the  premises  such  profits  as  they  were  capable  of  yielding,  or 
has  taken  possession  of  the  whole  and  used  them  as  his  own,  and  thereby 
made  a  profit,  he  must  account,  either  for  the  fair  rental  value  or  the  profits." 
This  they  announce  as  "a  construction  rather  more  liberal  to  the  tenants  out 
of  possession"  than  the  doctrine  of  the  principal  ease. 

The  doctrine  of  the  principal  case  is  very  learnedly  considered  by  Mr.  Free- 
man, editor  of  the  American  Decisions  and  American  State  Reports,  in  his 
work  on  Co-tenancy,  §§  274,  275,  and  in  §  258  he  says  :  "  In  some  parts  of 
the  United  States,  a  co-tenant  occupying  the  entire  real  estate  or  any  portion 
more  than  equivalent  to  his  interest,  though  without  any  denial  to  his  co- 
owner's  right  to  enter  and  enjoy  in  common  with  him,  is  liable  to  account 
for  the  value  of  such  occupation,"  citing  cases  from  South  Carolina,  Georgia, 
New  Jersey,  Maine,  Virginia,  Tennessee,  Mississippi.  "  Rut  the  decided  pre- 
ponderance of  the  authorities,  both  in  England  and  America,  affirms  the  right 


458  ACCRETION. 


No.  1.  —  R.  v.  Lord  Yarborough. —  Rule. 


of  each  co-tenant  to  enter  upon  and  hold  exclusive  possession  of  the  common 
property,  and  to  make  such  profit  as  he  can  by  proper  cultivation  or  by  other 
usual  means  of  acquiring  benefit  therefrom,  and  to  retain  the  whole  of  such 
benefits,  provided  that  in  having  such  possession,  and  in  making  such  profits,  he 
has  not  been  guilty  of  an  ouster  of  his  co-tenant,  nor  hindered  the  latter  from 
entering  upon  the  premises  and  enjoying  them  as  he  had  a  right  to  do,"  citing- 
cases  from  Massachusetts,  Indiana,  New  York,  Maryland,  California.  Louisiana, 
Minnesota,  Alabama.  Michigan,  Florida,  Iowa,  Illinois. 

The  rule  is  manifestly  different  where  there  is  an  ouster,  as  by  refusal  to 
let  his  co-tenant  in.  Hollowa?/  v.  Holloway,  97  Missouri,  628  ;  10  Am.  St.  Rep. 
339;  Career  v.  Coffman,  109  Indiana,  547;  Muldowney  v.  Morris,  frc.  R.  Co., 
42  Hun  (New  York  Supreme  Ct.),  445. 


ACCRETION  (of  Subject-Matter  of  a  Right). 

No.    1.  —  R.   v.   LORD   YARBOROUGH. 
(k.  b.   1824,  H.  l.  1828.) 

RULE. 

Land  formed  by  gradual  and  imperceptible  alluvion,  ac- 
cresces  (even  as  against  the  Crown  as  lord  of  the  fore- 
shore) to  the  owner  of  the  adjacent  soil. 

Imperceptible,  for  this  purpose,  means  not  obvious  in 
its  progress  ;  and  does  not  imply  that  in  a  long  course  of 
years  the  accretion  may  not  be  ascertained  to  be  consider- 
able. Where  the  evidence  shows  that  the  growth  could 
not  be  perceived  as  it  went  on,  but  in  26  or  27  years 
amounted  to  140  or  150  yards,  a  jury  may  reasonably  con- 
clude that  it  is  imperceptible. 

R.  v.  Lord  Yarborough. 

3  B.  &  C.  91  ;  (in  II.  L.)  5  Bing.  163  (s.  c.  in  II.  L.,  1  Dow  &  Clarke,  178). 

This  was  a  record  transmitted  from  the  petty  bag  office  into  the 
Court  of  King's  Bench,  which  sets  forth  an  inquisition  taken  at 
Cleathorps,  in  the  county  of  Lincoln,  on  the  12th  day  of  Novem- 
ber, 1818,  by  which,  amongst  other  things,  it  was  found  that  there 
is  a  certain  piece  of  land,  being  salt-marsh,  lying  near  or  adjoining 


ACCRETION.  459 


No.  1.  —  R.  v.  Lord  Yarborough. 


to  the  parish  or  lordship  of  North  Cotes  in  tin1  said  county,  which 
piece  of  land  is  bounded  towards  the  south  and  south-west  by  the 
sea-wall  or  sea-bank  of  the  said  lordship  of  North  Cotes,  and 
towards  the  north-west  by  part  of  the  sea-wall  or  sea-bank  of  cer- 
tain lands  in  the  lordship  of  Titney,  and  on  all  other  parts  by  the 
sea,  and  contains  by  estimation  453  acres  or  thereabouts,  and  is 
of  the  annual  value  of  4s.  an  acre,  and  was  in  times  past  covered 
with  the  water  of  the  sea,  but  is  now,  and  has  been  for  several 
years  past,  by  the  sea  left,  and  is  not  covered  with  water,  except 
at  high  tides,  when  the  sea  doth  flow  to  the  said  sea-walls  or  sea- 
bank  ;  which  said  piece  of  land,  from  the  time  of  such  dereliction, 
hitherto  has  been,  and  still  is,  unoccupied ;  but  the  herbage  thereof 
has  been  from  time  to  time  eaten  and  consumed  by  the  cattle  and 
sheep  belonging  to  divers  tenants  or  occupiers  of  lands  situate  within 
the  said  parish  or  lordship  of  North  Cotes.  And  the  inquisition 
then  stated  that  the  said  piece  of  land,  together  with  other  lands 
therein  specified,  the  commissioners  had  taken  and  caused  to  be 
seized  into  the  hands  of  our  said  lord,  the  King.  To  this  inqui- 
sition the  defendant  filed  a  traverse,  which,  after  craving  oyer  of 
the  commissioner's  return  and  inquisition,  and  admitting  the  boun- 
daries, quantity,  and  value  of  the  land  in  question,  and  that  the 
same  piece  of  land  is  now,  and  has  been'  for  several  years  past, 
not  covered  with  water,  except  at  high  tides,  when  the  sea  doth 
flow  to  the  said  sea-wall,  or  sea-bank,  states,  that  "from  time 
whereof  the  memory  of  man  runneth  not  to  the  contrary,  there 
hath  been,  and  still  is,  a  certain  ancient  manor  called,  or  known  by 
the  name  of,  the  manor  of  North  Thoresby  cum  North  Cotes,  situ- 
ate within  the  parish  of  North  Cotes  aforesaid,  in  the  said  countv 
of  Lincoln,  and  that  the  defendant,  long  before  the  respective  days 
of  issuing  the  commission  and  finding  the  inquisition,  to  wit,  on 
&c,  was  seized  in  his  demesne  as  of  fee,  of  and  in  the  manor  of 
North  Thoresby  cum  North  Cotes,  and  the  demesne  lands  thereof. 
and  that  the  same  piece  of  land  heretofore,  to  wit,  on  the  1st  day 
of  January,  1300,  and  on  divers  other  clays  and  times  between 
that  day  and  the  day  of  the  finding  the  inquisition,  by  the  slow, 
gradual,  and  imperceptible  projection,  alluvion,  subsidence,  and 
accretion  of  ooze,  soil,  sand,  and  matter,  being  slowly,  gradually, 
and  by  imperceptible  increase  in  long  time  cast  up,  deposited,  and 
settled  by  and  from  the  flux  and  reflux  of  the  tide  and  waves  of 
the  sea,  in,  upon,  and  against  the  outside  and  extremity  of  the 


460  ACCRETION. 


No.  1.  —  R.  v.  Lord  Yarborough. 


demesne  lands  of  the  same  manor,  hath  been  formed,  and  hath 
settled,  grown,  and  accrued  upon  and  against  and  unto  the  said 
demesne  lands  of  the  same  manor,  and  the  same  and  every  por- 
tion thereof,  when  and  as  the  same  hath  so  there  been  formed, 
settled,  grown,  and  accrued,  hath  thereupon  and  thereby  at  those 
times  respectively  in  that  behalf  above  mentioned,  forthwith  be- 
come and  been,  and  from  the  same  several  times  respectively  have 
and  hath  continued  to  be,  and  still  are,  and  is  part  and  parcel 
of  the  said  demesne  lands  of  the  same  manor;  and  the  several 
owners  and  proprietors  of  the  same  manor  for  the  time  being, 
during  all  the  time  aforesaid,  until  the  time  of  the  seisin  of  the  de- 
fendants, as  aforesaid,  and  defendant  during  the  time  he  hath  been  so, 
as  aforesaid,  seized  of  and  in  the  said  manor,  from  the  time  of  the 
formation  and  accretion  of  the  same  piece  of  land  and  every  part 
thereof  respectively,  continually,  until  the  time  of  the  rinding  of 
the  inquisition,  respectively  were  and  was  seized  in  their  and  his 
demesne  as  of  fee,  of  and  in  the  same  piece  of  land  and  every  part 
thereof,  when  and  as  the  same  hath  so  been  formed  and  accrued 
as  aforesaid,  as  and  for  part  and  parcel  of  the  demesne  lands  of  the 
same  manor.  Without  this,  that  the  said  piece  of  land  in  the 
plea  mentioned,  and  in  the  inquisition  last  above  mentioned,  or 
any  part  or  parcel  thereof,  was  or  now  is  by  the  sea  left  in  manner 
and  form  as  in  the  inquisition  is  above  supposed  and  found."  The 
replication  of  the  Attorney-General  traversed  part  of  the  induce- 
ment to  the  defendant's  traverse  as  follows  :  "  Without  this,  that 
the  said  piece  of  land,  in  the  inquisition  lastly  mentioned,  being 
the  piece  of  land  before  described  at  the  times  in  the  said  plea 
mentioned,  by  the  slow,  gradual,  and  imperceptible  projection, 
alluvion,  subsidence,  and  accretion  of  ooze,  soil,  sand,  and  other 
matter  being  slowly,  gradually,  and  by  imperceptible  increase  in 
long  time,  cast  up,  deposited,  and  settled  by  and  from  the  flux  and 
reflux  of  the  tide  and  waves  of  the  sea  in,  upon,  and  against  the 
outside  and  extremity  of  the  demesne  land  of  the  same  manor, 
hath  been  formed,  and  hath  settled,  grown,  and  accrued  upon  and 
against  and  unto  the  said  demesne  lands  of  the  same  manor,  in 
manner  and  form  as  the  defendant  hath  above  in  his  plea  in  that 
behalf  alleged;"  and  the  defendant  in  his  rejoinder  took  issue 
upon  that  fact.  The  replication  then  took  issue  on  the  defen- 
dants' traverse,  "  that  the  said  piece  of  land  in  the  plea  of  defen- 
dant mentioned,  was   and   now  is  by  the  sea  left,  in  manner  and 


ACCRETION.  461 


No.  1. — R.  v.  Lord  Yarborough. 


form  as  in  the  inquisition  is  above  supposed  and  found;"  and  there- 
upon also  the  defendant  joined  issue.  These  issues  were  tried  at 
the  last  assizes  for  the  county  of  Derby,  before  Park,  J.,  and  a  ver- 
dict found  for  the  defendant.  A  rule  nisi  having  been  obtained 
to  show  cause  why  a  new  trial  should  not  be  had,  the  Court  di- 
rected, at  the  time  of  showing  cause  against  the  rule,  that  the 
facts  proved  at  the  trial  should  be  stated  in  a  special  case  for 
the  opinion  of  the  Court,  and  that  if  judgment  should  be  given 
for  the  King  upon  such  case,  the  verdict  obtained  for  the  defen- 
dant should  be  set  aside  and  a  new  trial  hail ;  and  if  judgment 
should  be  given  for  the  defendant  upon  such  case,  judgment  should 
be  entered  for  the  defendant  upon  the  verdict.  The  case  was  as 
follows :  — 

The  land  in  question  consists  of  450  acres  of  salt-marsh  called 
littees,  being  the  land  covered  with  herbage,  which,  at  the  time  of 
taking  the  inquisition  set  forth  in  the  pleadings,  lay  between  the 
sea-wall  and  the  sea  opposite  to  North  Cotes,  in  the  county  of 
Lincoln.  It  was  proved  that  this  land  had  been  formed  in  the 
course  of  time  by  means  of  ooze,  warp,  silt,  sludge,  and  soil,  carried 
down  by  the  Humber  and  deposited  and  cast  up  by  the  flux  and 
reflux  of  the  sea  upon  and  against  the  adjacent  land,  whereby  the 
land  has  been  enlarged  and  increased,  and  the  sea  has  receded.  The 
matter  thus  deposited  is  at  first  soft  and  sludgy,  but  in  the  course 
of  five  or  six  years  grows  firm,  and  then  produces  herbage.  With 
respect  to  the  degree  or  rate  of  growth  and  increase  of  the  land, 
the  evidence  produced  on  the  part  of  the  Crown  was  as  follows : 
the  first  witness  proved  that  the  sea  had  receded  in  parts  140  or 
150  yards  within  twenty-six  or  twenty-seven  years;  and  that 
within  the  last  four  years  he  could  see  that  it  had  receded  much 
in  parts,  but  could  not  say  how  much  ;  and  in  parts  he  believed 
that  it  had  not  receded  at  all.  The  alteration,  he  said,  had  been 
slow  and  gradual,  and  he  could  not  perceive  the  growth  as  it  went 
on,  though  he  could  see  there  had  been  an  increase  in  twenty-six 
or  twenty-seven  years  of  140  to  150  yards,  and  that  it  had  cer- 
tainly receded  since  he  measured  the  land  the  year  before.  The 
second  witness  proved  that  in  fifteen  years  there  had  been  an 
increase  of  the  fittees  on  the  outside  of  the  sea-wall ;  in  some 
parts  from  100  to  150  yards;  that  it  grows  a  little  from  year  to 
year.  That  within  the  last  five  years  there  had  been  a  visible 
increase  in  some  parts  during  that  period,  of  from  thirty  to  fifty 


462  ACCRETION". 


No.  1.  —  It.  v.  Lord  Yarborough. 


yards;  that  the  gradual  increase  is  nut  perceptible  to  the  eye  at 
the  moment.  The  third  witness  said  there  had  been  some  small 
increase  in  every  year;  and  the  fourth  witness  said  the  swartli 
increased  every  year  very  gradually,  and  that  perhaps  it  had  gath- 
ered a  quarter  of  a  mile  in  breadth  in  some  places  within  his 
recollection,  or  during  the  last  fifty-four  or  fifty-five  years,  and  in 
soine  places  it  had  gathered  nothing.  It  was  proved  that  the 
ground  between  the  sea-wall  above  mentioned  and  another  sea- 
wall still  more  remote  from  the  sea,  appeared  to  have  been  covered 
over  with  the  sea  formerly. 

Goulburn,  for  the  Crown.     The  principles  of  law  which  govern 
the  rights  of  the  Crown  to  maritime  accretions  are  laid  down  with 
great  precision   by   Lord  Hale,  in  his  treatise  De  Jure  Maris.     He 
states  that  "  the  King  hath  a  title  to  maritime  increments,  or  in- 
crease of  the  land  by  the  sea;  and   this  is  of  three  kinds,  —  viz., 
first,  increase  per  projectionem  vel  alluvionem  ;  second,  increase  per 
relictionem  vel  desertionem  ;  third,  per  insulce  produetionem,"  Pt.   I., 
c.  4,  p.  14,  and  he  gives  a  description  of  each.     The  increase  per 
alluvionem  is  now  in   question,  and  that  he  describes  as  follows: 
"  The  increase  per  alluvionem  is  when  the  sea,  by  casting  up  sand 
and  earth,  doth  by  degrees  increase  the  land,  and  shut  itself  out 
further  than  the  ancient  bounds  went.     The  reason  why  this  be- 
longs to  the  Crown  is,  because,  in  truth,  the  soil  where  there  is  now 
dry  land  was  formerly  part  of  the  very  fundus  maris,  and  conse- 
quently belonged  to  the  King.     But,  indeed,  if  such  alluvion  be  so 
insensible  that  it  cannot  be  by  any  means  found  that  the  sea  was 
there,  idem  est  nan  esse  et  non   apparere,  the  land   thus  increased 
belongs,  as  a  perquisite,  to  the  owner  of  the  land  adjacent."     In 
page  28  Lord  Hale  again  describes  tic  jus  alluvionis  in  nearly  the 
same  words,  and  then   cites  the   following   passage  from    Bracton, 
lib.  2,  c.  2:  "Item   quod   per  alluvionem   ngro  tuo  flumen  adjecit 
jure  gentium  tibi  acquiritur.     Est  autem   alluvio  lateris  incremen- 
tum.     Et  per  alluvionem  adjici  dicitur  quod  ita  paulatim  adjicitur 
quod  intelligere  non   possis  quo  momento  temporis  adjiciatur,  &c. 
Si  autem  non  sit  lateris  incrementum  contrarium  erit,  ut  vis  flumi- 
nis  partem  aliquam  ex  tuo  praedio  detraxit  et  vicini  praedio  appulit, 
certum  est  earn  tuum  permanere,  &c,"  and  then  he  observes  :  "  but 
Bracton  follows   the  civil  law  in   this  and  some  other  following 
places;"  and  soon  after  he  adds:  "  This  jus  alluvionis,  as  I  have 
before  said,  is  de  jure  communi,  by  the  law  of  England,  the  King's." 


ACCRETION.  463 


No.  1. — E.  v.  Lord  Yarborough. 


AVith  respect  to  the  increase  per  relictionem,  or  recess  of  the  sea, 
Lord  Hale  says:  "This  doth  de  jure  communi  belong  to  the  King" 
(p.  14),  and  he  assigns  the  same  reason  as  before,  that  the  sea  is 
part  of  the  waste  of  the  Crown,  and  therefore  that  which  lies  under 
it  belongs  to  the  King;  and  he  cites  the  case  of  an  information 
against  Oldsworth  and  others,  "for  intruding  into  300  acres  of 
land  which  was  relictum  per  mure,  and  now  called  Sutton  Marsh  ; 
the  defendants  pleaded  specially  and  entitled  themselves  by  pre- 
scription to  the  lands  -project  by  the  sea ;  and  upon  demurrer 
adjudged  against  them,  that,  first,  by  the  prescription  or  title  made 
to  lands  project,  which  is  jus  alluvionis,  no  answer  is  given  to  the 
information  for  lands  relict,  lor  these  were  of  several  natures 
Second,  it  was  held  that  it  lies  not  in  prescription  to  claim  lands 
relict  per  mare."  This  case  proves  two  things  ;  first,  that  it  is 
necessary  to  plead  specially  a  title  to  lands  gained  per  alluvionem  ; 
and,  secondly,  that  custom  cannot  give  a  right  to  lands  per  relicr 
tionem.  In  the  case  of  The  Abbot  of  Peterborough,  Hale,  De  Jure 
Mar.  29,  he  pleaded  and  proved  a  title  by  custom  to  lands  formed 
per  alluvionem,  and  judgment  was  given  for  him.  It  is  not  con- 
tended that  the  defendant,  in  the  present  case,  might  not  have 
shown  a  title  to  the  lands  in  dispute  if  he  had  alleged  and  proved 
a  custom,  but  he  has  not  done  so.  In  The  Abbot  of  Ramsay' s  Case, 
Dyer,  326  b,  where  the  Crown  demanded  sixty  acres  of  land  which 
the  abbot  had  appropriated  to  himself,  he  pleaded  that  he  held  the 
manor  of  Brancaster,  situate  near  the  sea,  and  that  there  was  there 
a  certain  marsh,  sometimes  diminished  and  sometimes  increased  by 
the  flux  and  reflux,  of  the  sea,  and  traversed  the  appropriation  ; 
and  upon  issue  joined  a  verdict  was  found  for  the  abbot,  and  judg- 
ment given  quod  cat  sine  die.  This  case  is  cited  by  Lord  Hale, 
p.  29,  who  observes  upon  it:  "Here  is  no  custom  at  all  alleged; 
but  it  seems  he  relied  upon  the  common  right  of  his  case,  as  that 
he  suffered  the  loss,  so  lie  should  enjoy  the  benefit,  even  by  tic 
bare  common  law,  in  case  of  alluvion."  Upon  that  authority  it 
must  be  conceded  that  a  subject  may  be  entitled  to  accretions  by 
alluvion  if  he  pleads  and  proves  that  he  has  been  subject  to  loss 
by  the  sea  in.  the  same  place.  At  the  commencement  of  that  case 
Dyer  puts  a  qumre,  "whether  lands  left  by  the  sea  shall  belong  to 
the  prince  or  the  owner  of  the  adjoining  land,"  which  is  answered 
in  a  note  supposed  to  be  by  Treby,  C.  J.  :  "  The  prince  shall  have 
all  lands  left  by  or  gained  from  the  sea."     There  is  another  way 


464  ACCRETION. 


No.  1.  —  It.  v.  Lord  Yarborough. 


also  in  which  the  subject  may  be  entitled  to  increase  by  alluvion, 
—  viz.,  if  the  alluvion  is  so  insensible  that  it  cannot  be  known  that 
the  sea  ever  was  there.  To  this  right  Callis,  on  Sewers,  p.  51,  ap- 
plies the  principle  " de  minimis  non  curat  lex."  It  is  unnecessary 
to  notice  the  increase  per  insulce  productionem.  The  right  of  the 
King  to  lands  funned  by  alluvion,  or  left  by  the  sea,  is  therefore 
clear.  It  is  also  admitted  that  where  the  land  of  a  subject  is  over- 
whelmed by  the  sea,  and  again  left  dry,  the  right  of  the  subject 
revives.  Eoll.  Abr.  16S,  Prerog.  duo.  Roy  B.  pi.  2.  The  Crown, 
therefore,  in  claiming  maritime  increments,  takes  nothing  from  the 
subject ;  it  merely  claims  to  retain,  in  a  dry  state,  that  which 
clearly  belonged  to  it  when  covered  with  water.  In  the  present 
instance,  the  subject  seeks  to  take  something  from  the  Crown. 
Probably  the  passage  cited  from  Bracton  by  Lord  Hale  may  be 
relied  on  by  the  other  side  ;  but  Lord  Hale  observes  that  the  pas- 
sage in  question  follows  the  civil  law,  and  in  various  other  works 
Bracton  is  spoken  of  as  not  being  entitled  to  much  weight  as  an 
authority  in  our  law.  See  Fitz  Abr.  Gard.pl.  71.  Stowellv.  Zouch, 
1  Plowd.  357;  Ball  v.  Herbert,  3  T.  R  263.  But  see  a  different 
opinion  of  Bracton  in  Pref.  to  9  Co.  p.  13,  and  Doddridge's  Eng. 
Lawyer,  41.  Another  authority  relied  upon  by  the  defendants  at 
the  trial  was  2  Bl.  Com.  p.  261  ;  but  that  is  plainly  a  very  loose 
passage,  for  no  distinction  is  made  between  the  increment  by  allu- 
vion and  by  dereliction.  It  cannot  be  contended  that  all  increase 
by  alluvion  belongs  to  the  subject  if  it  be  imperceptible  to  the  eye 
whilst  going  on,  for  then  the  increase  by  alluvion  muse  always  be- 
long to  the  subject,  for  the  actual  formation  of  the  land  can  never 
be  observable  at  the  moment.  The  right  of  the  subject  really 
depends  on  the  principle  "  de  minimis  non  curat  lex."  Here  the 
whole  increase  was  460  acres,  and  it  went  on  at  the  rate  of  eight 
or  nine  yards  in  width  every  year.  The  principle  before  men- 
tioned is  here  inapplicable.  No  customary  or  prescriptive  right  was 
pleaded,  nor  was  the  defendants'  case  made  to  depend  upon  the 
liability  to  loss  by  the  encroachment  of  the  sea  ;  the  first  issue 
should,  therefore,  have  been  found  for  the  Crown.  On  the  second 
issue  the  only  question  was,  whether  the  land  had  been  left  in  the 
manner  stated  in  the  inquisition.  Now,  the  only  object  of  the  in- 
quisition was  to  find  whether  land  which  had  originally  been  cov- 
ered with  the  sea  had  been  left  dry.  No  technical  distinction 
was  made  by  the  commissioners  between  lands  formed  by  alluvion 


ACCRETION.  465 


No.  1.  —  R.  v.  Lord  Yarborough. 


and  those  derelict  by  the  sea.  Their  finding  was  in  substance  that 
the  sea  had  receded  from  the  lands  in  question,  and  that  was  sup- 
ported by  the  evidence. 

Phillipps,  contra.  The  word  "imperceptible,"  in  the  first  issue, 
must  be  understood  in  the  sense  which  the  term  commonly  bears. 
It  has  not  any  legal  or  technical  meaning  in  contradistinction  from 
the  sense  which  it  bears  in  common  parlance.  The  same  meaning 
will  be  collected  from  the  context.  The  issue  is,  whether  the  piece 
of  land  in  dispute  has  been  formed  upon  the  demesne  lands  of  the 
manor  by  the  "  slow,  gradual,  and  imperceptible  projection,  allu- 
vion, subsidence,  and  accretion  of  ooze,  soil,  and  other  matter  being 
slowly,  gradually,  and  imperceptibly  deposited  by  the  flux  and 
reflux  of  the  tides."  The  words  "slow,  gradual,  and  imperceptible 
accretion  and  alluvion  "  must  be  understood  to  describe  an  alluvion 
so  gradual  as  not  to  be  observed  at  the  time,  as  not  to  be  perceived 
in  its  progress.  The  deposition  being  thus  imperceptible,  the  in- 
crease must  be  the  same.  By  the  operation  of  the  titles,  then,  a 
small  increment  has  been  deposited  from  day  to  day,  until,  in  the 
course  of  time,  a  considerable  piece  of  land  has  been  formed ;  still, 
however,  composed  of  minute  increments,  each  part  being  to  the 
whole  as  the  fluxion  to  the  fluent.  If  the  words  of  the  issue  are  to 
be  understood  in  their  ordinary  sense,  the  evidence  completely 
established  the  defendant's  allegation,  and  the  jury  could  only  find 
their  verdict  for  him.  One  witness  stated  that  the  alteration  had 
been  slow  and  gradual,  and  he  could  not  perceive  the  growth  as  it 
went  on.  Another  said  that  the  land  grows  a  little  from  year  to 
year,  and  that  the  gradual  increase  is  not  perceptible  to  the  eye  at 
the  moment.  If  there  be  in  return  naturd  such  a  thing  as  imper- 
ceptible alluvion,  it  was  that  which  the  witnesses  in  this  case  proved 
to  have  taken  place.  It  exactly  corresponds  with  Bracton's  defini- 
tion of  alluvion:  "  Lateris  incrementum  quod  ita  paulatirn  adjicitur 
ut  intelligere  non  possis  quo  momento  temporis  adjiciatur."  The 
jury,  therefore,  could  not  do  otherwise  than  find  the  first  issue  for 
the  defendant,  and  if  so,  all  questions  as  to  the  second  is  at  once 
disposed  of;  for  that  describes  the  lands  as  left  by  the  sea.  Now, 
Lord  Hale  and  Callis,  in  a  variety  of  passages,  speak  of  lands 
formed  by  alluvion  and  those  left  by  the  sea  as  totally  different  in 
nature,  and  subject  to  different  rules  of  law.  If,  therefore,  the  first 
issue  was  properly  found  for  the  defendant,  the  jury  could  not 
have  done  right  had  they  found  the  second  for  the  Crown.  The 
vol.  i. —30 


466  ACCRETION". 


No.  1. — R.  v.  Lord  Yarborough. 


principal  point  made  on  the  other  side  was,  that  even  supposing 
the  land  in  question  to  have  been  deposited  by  imperceptible 
degrees,  still  the  defendant  cannot  be  entitled  to  the  judgment 
of  the  court,  inasmuch  as  he  has  not  stated  on  the  record  any  cus- 
tom or  prescription,  or  oilier  legal  title  to  it.  But  upon  a  careful 
examination  of  the  authorities  it  will  be  found  that  the  subjert  is 
entitled  to  such  lands  of  common  right.  There  is  little  to  be  found 
touching  the  point  in  the  old  books.  Neither  Brooke's  or  Fitzher- 
bert's  Abr.  contains  any  trace  of  such  a  prerogative  as  that  now 
claimed,  nor  is  it  mentioned  in  Staunford  de  Prerog.  Eegis.  Dyer, 
C.  J.,  puts  it  as  a  doubtful  question,  whether  a  great  quantity  of  land 
relinquished  by  the  sea  shall  belong  to  the  prince  by  his  prerogative 
or  to  the  owner  of  the  adjoining  land  as  a  perquisite  (Dyer, 
326  h) ;  and  after  referring  to  several  text  writers,  he  cites  The 
Abbot  of  Ramsay's  ('use,  and  afterwards  Digges  v.  Hammond  as  a 
like  case.  In  both,  judgment  was  given  for  the  subject  against  the 
Crown,  although  the  record  did  not  contain  any  allegation  of  a  cus- 
tomary or  prescriptive  title  ;  and  it  appears  by  Callis,  pp.  50  and 
53,  that  the  lands  were  formed  by  alluvion.  With  respect  to  the 
note  by  Treby,  C.  J.,  it  is  plain  that  if  it  was  meant  as  a  solution 
of  C.  J.  Dyer's  doubt,  it  applies  to  derelict  lands  only  ;  but  if  it  is 
to  be  taken  in  a  larger  sense,  still  it  can  only  apply  to  derelict 
lands,  and  those  from  which  the  sea  has  been  excluded  by  artificial 
means.  It  cannot  be  supposed  to  include  lands  formed  by  allu- 
vion ;  that  is  contrary  to  the  natural  meaning  of  the  words,  and  in 
opposition  to  the  two  cases  reported  immediately  after  the  qucere 
put  in  the  text.  Now,  it  is  not  probable  that  Treby,  C.  J.,  would 
have  expressed  an  opinion  inconsistent  with  those  cases,  without 
making  some  observation  upon  them.  In  2  Roll.  Abr.  Prerog.  B, 
pi.  9,  10;  the  cases  cited  by  Dyer  are  adopted,  and  then  follows 
pi.  11.  "If  the  salt  water  leaves  a  great  quantity  of  land  on  the 
shore,  the  King  shall  have  the  land  by  his  prerogative,  and  the 
owner  of  the  adjoining  soil  shall  not  have  it  as  a  perquisite." 
Whence  it  may  be  inferred  that  Rolle  thought,  land  formed  grad- 
ually by  alluvion  would  go  to  the  owner  of  the  adjoining  land,  of 
common  right  as  a  perquisite;  and  it  has  been  so  understood 
Com.  Dig.  Prerog.  (D.  61)  and  2  Bl.  Com.  261.  Lord  Hale,  in 
his  treatise,  De  Jure  Maris,  manifestly  speaks  of  two  different  kinds 
of  gain  by  alluvion  ;  the  one  where  a  considerable  increase  takes 
place  at  one  time,  the  other  where  it  is  gradual  and  by  insensible 


ACCRETION'.  407 


No.  1.  —  R.  v    Lord  Yarborough. 


degrees.  In  the  former  case  it  belongs  to  the  Crown,  in  the  lat- 
ter to  the  subject;  and  he  does  nut  cite  any  case  to  show,  that, 
under  such  circumstances,  the  right  of  the  subject  depends  on  cus- 
tom or  prescription.  In  The  Abbot  of  Peterborough's  Case  &  custom 
was  certainly  alleged,  but  it  is  not  stated  that  his  right  could  nut 
have  been  established  without  it;  and  in  The  Abbot  of  Rams 
('use  no  such  title  was  stated  on  the  record.  Lord  Hale  cannot 
be  taken  to  mean  that  the  increment  belongs  to  the  subject  only 
when  it  is  so  inconsiderable  as  to  be  scarcely  perceptible ;  for  in 
The  Abbot  of  Ramsay's  Case,  which  he  cites,  the  dispute  was  for 
sixty  acres;  and  unless  the  land  is,  after  the  lapse  of  many  years, 
■clearly  discernible,  a  dispute  respecting  it  can  hardly  arise.  The 
true  and  only  sensible  meaning  is,  that  where  the  increase  is  im- 
perceptible in  its  progress,  there  the  land  becomes  the  property 
<>f  the  subject  as  it  is  formed  ;  it  is  then  vested  in  him  de  die  in 
diem  ;  and  what  is  once  vested  in  him,  cannot  be  divested  by  the 
circumstance  of  a  still  further  increase  afterwards  taking  [-lace. 
This  agrees  with  the  case  cited  in  Callis,  51,  from  the  22  Lib.  Ass. 
pi.  93.  "  The  case  was,  that  a  river  of  water  did  run  between  two 
lordships,  and  the  soil  of  one  side,  together  with  the  river  of  water, 
■did  wholly  belong  to  one  of  the  said  lordships  ;  and  the  river,  by 
little  and  little,  did  gather  upon  the  soil  of  the  oilier  lord,  but  so 
slowly  that  if  one  had  fixed  his  eye  a  whole  day  thereon  together 
it  could  not  be  perceived.  By  this  petty  and  imperceptible  in- 
crease the  increasement  was  got  to  the  owner  of  the  river;  but  if 
the  river,  by  a  sudden  and  an  unusual  flood,  had  gained  hastily  a 
great  parcel  of  the  other  lord's  ground,  lie  should  not  thereby  have 
lost  the  same:  and  so  of  petty  and  imperceivable  increase- 
ments  from  the  sea,  the  King  gains  no  property,  for  de  minimi* 
-non  curat  lex.'"  The  case  of  the  river  clearly  explains  the  mode 
in  which  Callis  intends  to  apply  the  maxim,  — viz.,  that  the  King 
has  no  claim  to  the  land  where  the  increase  is  by  imperceptible  de- 
grees, however  large  it  may  ultimately  become.  There  is  not, 
then,  either  upon  authority  or  principle,  any  ground  for  disturb- 
ing the  verdict  found  for  the  defendant.  Cur.  adv.  vult. 

The  judgment  of  the  court  was  now  delivered  by 
Abbott,  C.  J.      Upon   this  case  the  only  question  for  the  judg- 
ment of  the  court  is,  whether  the  evidence  given   at  the  trial  was 
such  as  to  justify  the  verdicl   of  the     nrv    ■       ,   the  issues  joined. 


468  ACCRETION. 


No.  1.  — R.  v.  Lord  Yarborough. 


Whether  the  pleadings  have  been  correctly  framed  on  either  side, 
or  what  may  be  the  legal  consequence  and  effect  of  the  verdict, 
supposing  it  to  stand,  are  points  not  now  before  us.  I  notice  this, 
because  some  part  of  the  argument  at  the  bar  was  more  properly 
applicable  to  a  matter  of  law  upon  admitted  facts  than  to  the 
question  whether  particular  issues  are  maintained  by  the  evidence ; 
or,  in  other  words,  whether  particular  facts  are  found  to  exist. 

The  second  issue  upon  the  record  arises  upon  a  traverse  of  the 
matter  found  by  the  inquisition.  The  matter  thus  found  is,  that 
the  land  now  claimed  by  the  Crown  was  in  times  past  covered  with 
the  water  of  the  sea,  but  is  now,  and  has  been  for  several  years,  left 
by  the  sea.  Now,  the  distinction  between  land  derelict,  or  left  by 
the  sea,  acquiring  a  new  character  in  consequence  of  the  mere  sub- 
sidence and  absence  of  the  salt-water,  and  land  gained  by  alluvion 
or  projection  of  extraneous  matter,  whereby  the  sea  is  excluded 
and  prevented  from  overflowing  it,  is  easily  intelligible  in  fact,  and 
recognised  as  law  by  all  the  authorities  on  the  subject.  Upon  the 
evidence  it  is  very  plain  that  the  land  in  question  is  of  the  latter 
description,  and  therefore  the  issue  joined  upon  this  point  was 
properly  found  for  the  defendant. 

The  principal  question  arose  upon  the  first  issues,  and  it  is,  as  I 
have  before  intimated,  merely  a  question  of  fact.  The  defendant  has 
pleaded  that  the  land  in  question,  by  the  slow,  gradual,  and  imper- 
ceptible projection,  alluvion,  subsidence,  and  accretion  of  ooze,  soil, 
sand,  and  other  matter,  being  slowly,  gradually,  and  by  imperceptible 
increase,  in  long  time  cast  up,  deposited,  and  settled  by  and  from 
the  flux  and  reflux  of  the  tide  and  water  of  the  sea  in,  upon,  and 
against  the  outside  and  extremity  of  the  demesne  lands  of  the  manor, 
hath  been  formed, and  hath  settled,  grown,  and  accrued  upon,  against, 
and  unto  the  said  demesne  lands.  This  allegation  has  been  denied 
on  the  part  of  the  Crown,  and  an  issue  taken  upon  it.  The  allega- 
tion regards  only  the  manner  in  which  the  land  has  been  formed  ;  it 
contains  nothing  as  to  the  result  of  its  formation,  nothing  as  to  the 
practicability  of  ascertaining,  after  its  formation,  by  any  marks  or 
limits  or  quantity  previously  existing  and  known,  or  by  measure 
to  commence  and  be  taken  from  such  marks,  or,  with  reference  to 
such  quantity,  how  much  is  now  land  that  once  was  sea.  It 
is  clear  upon  the  evidence  that  the  land  has  been  formed  slowly 
and  gradually  in  the  way  mentioned  in  the  plea.  The  argument 
was  upon  the  word  "  imperceptibly  ; "  and  for  the  Crown  two  pas- 


ACCRETION.  469 


No.  1.  —  R.  v.  Lord  Yarborough. 


sages  were  cited  from  Sir  Matthew  Hale's  treatise,  De  Jure 
Maris,  wherein  that  very  learned  writer  speaks  of  land  gained  by 
alluvion  as  belonging  generally  to  the  Crown,  unless  the  gain  be  so 
insensible  that  it  cannot  be  by  any  means,  according  to  the  words 
of  one  of  the  passages,  or  by  any  limit*  or  marks,  according  to  the 
words  of  the  other  passage,  found  that  the  sea  was  there  :  idem  est 
Dim  esse  et  non  apparere.  In  these  passages,  however,  Sir  Mat- 
thew Hale  is  speaking  of  the  legal  consequence  of  such  an  accre- 
tion, and  does  not  explain  what  ought  to  be  considered  as  accretion 
insensible  or  imperceptible  in  itself,  Lint  considers  that  as  being 
insensible  of  which  it  cannot  be  said  with  certainty  that  the  sea  ever 
was  there.  An  accretion  extremely  minute  —  so  minute  as  to  be 
imperceptible  even  by  known  antecedent  marks  or  limits  at  the  end 
of  four  or  five  years  —  may  become,  by  gradual  increase,  perceptible 
by  such  marks  or  limits  at  the  end  of  a  century,  or  even  of  forty  or 
fifty  years.  For  it  is  to  be  remembered  that  if  the  limit  on  one 
side  be  land,  or  something  growing  or  placed  thereon,  —  as  a  tree, 
a  house,  or  a  bank,  —  the  limit  on  the  other  side  will  be  the  sea, 
which  rises  to  a  height  varying  almost  at  every  tide,  and  of  which 
the  variations  do  not  depend  merely  upon  the  ordinary  course  of 
nature  at  fixed  and  ascertained  periods,  but  in  part  also  upon  the 
strength  and  direction  of  the  wind,  which  are.  different  almost 
from  day  to  day.  And  therefore  these  passages  from  the  work  of 
Sir  Matthew  Hale  are  not  properly  applicable  to  this  question. 
And  considering  the  word  "  imperceptible  "  in  this  issue  as  con- 
nected with  the  words  "  slow  and  gradual,"  we  think  it  must  be 
understood  as  expressive  only  of  the  manner  of  the  accretion,  as 
the  other  words  undoubtedly  are,  and  as  meaning  imperceptible  in 
its  progress,  —  not  imperceptible  after  a  long  lapse  of  time.  And 
taking  this  to  be  the  meaning  of  the  word  "imperceptible,"  the 
only  remaining  point  is,  whether  the  accretion  of  this  land  might 
properly  upon  the  evidence  be  considered  by  the  jury  as  impercep- 
tible. Not  one  witness  has  said  that  it  could  lie  perceived,  cither 
in  its  progress  or  at  the  end  of  a  week  or  a  month.  One  witness, 
who  appears  twice  to  have  measured  the  land,  says,  that  within 
the  last  four  years  he  could  see  that  the  sea  had  receded,  but  he 
could  not  say  how  much  ;  the  same  witness  said  that  it  certainly 
had  receded  since  he  measured  it  last  year,  but  he  did  not  say  how 
much  ;  and,  according  to  his  evidence,  the  gain  in  a  period  of 
twenty-six  or  twenty-seven  years  was  on   the  average  about   live 


470  ACCRETION. 


No.  1.  —  R.  v.  Lord  Yarborough. 


yards  and  a  half  in  a  year.  Another  witness  speaks  of  a  gain  of 
from  100  to  150  yards  in  fifteen  years,  —  a  much  greater  increase 
than  that  mentioned  by  the  first  witness  ;  and  this  second  witness 
adds,  that  during  the  last  five  years  there  had  been  a  visible 
increase  in  some  parts  of  from  thirty  to  fifty  yards.  Upon  the 
evidence  of  this  witness,  it  is  to  be  observed  that  he  speaks  very 
loosely,  —  the  difference  between  100  and  150  in  fifteen  years,  and 
between  thirty  and  fifty  in  five  years  being  very  great.  The  third 
witness  said  there  had  been  some  small  increase  in  every  year. 
The  fourth  witness  said,  the  swarth  increases  every  year  very  grad- 
ually, and  perhaps  it  had  gathered  a  quarter  of  a  mile  in  breadth 
in  some  places  within  his  recollection,  or  daring  the  last  fifty  four 
or  fifty-five  years  ;  and  in  some  places  it  had  gathered  nothing. 
And  this  was  the  whole  evidence  on  the  subject.  We  think  the 
jury  might,  from  this  evidence,  very  reasonably  find  that  the  in- 
crease had  not  only  been  slow  and  gradual,  but  also  imperceptible, 
according  to  the  sense  in  which,  as  I  have  before  said,  we  think 
that  word  ought  to  be  understood.  And  consequently  we  are  of 
opinion  that  a  new  trial  ought  not  to  be  granted,  and  the  rule 
therefore  must  be  discharged.  Rale  discharged. 

A  writ  of  error  in  Parliament  having  been  brought  by  the  Attor- 
ney-General on  behalf  of  the  Crown,  the  cause  was  heard  on  the 
9th  of  June,  1828,  in  the  House  of  Lords,  in  the  presence  of  the 
eleven  judges,  and  having  been  argued  by  counsel,  the  judgment  of 
the  Judges  was,  by  leave  of  the  House,  on  the  15th  of  July,  1828, 
delivered  by 

Best,  C.  J.  My  Lords,  the  question  which  your  Lordships  have 
proposed  for  the  opinion  of  the  Judges  is  as  follows :  "  A.  is 
seized  in  his  demesne  as  of  fee  of  the  manor  of  N.,  and  of  the 
demesne  lands  thereof,  which  said  demesne  lands  were  formerly 
bounded  on  one  side  by  the  sea.  A  certain  piece  of  land,  consist- 
ing of  about  450  acres,  by  the  slow,  gradual,  and  imperceptible 
projection,  alluvion,  subsidence,  and  accretion  of  ooze,  soil,  sand, 
and  matter  slowly,  gradually,  and  imperceptibly,  and  by  imper- 
ceptible increase  in  long  time  cast  up,  deposited,  and  settled 
by  and  from  flux  and  reflux  of  the  tide  and  waves  of  the  sea  in, 
upon,  and  against  the  outside  and  extremity  of  the  said  demesne 
lands,  hath  been  formed  and  hath  settled,  grown,  and  accrued  upon 
and  against  and  unto  the  said  demesne  lands.     Does  such  piece  of 


ACCRETION.  471 


No.  1.  —  R.  v.  Lord  Yarborough. 


land  so  formed,  settled,  grown,  and  accrued  as  aforesaid  belong  to 
the  Crown  or  to  A.,  the  owner  of  the  said  demesne  land  ?  There 
is  no  local  custom  on  the  subject." 

The  Judges  have  desired  me  to  say  to  your  Lordships,  that  land 
gradually  and  imperceptibly  added  to  the  demesne  lands  of  a 
manor,  as  stated  in  the  introduction  to  your  Lordship's  question, 
does  not  belong  to  the  Crown,  but  to  the  owner  of  the  demesne 
land. 

All  the  writers  on  the  law  of  England  agree  in  this :  that  as  the 
King  is  lord  of  the  sea  that  Hows  around  our  coasts,  and  also  owner 
of  all  the  land  to  which  no  individual  has  acquired  a  right  by 
occupation  and  improvement,  the  soil  that  was  once  covered  by 
the  sea  belongs  to  him. 

But  this  right  of  the  sovereign  might,  in  particular  places,  or 
under  circumstances,  in  all  places  near  the  sea,  be  transferred  to 
certain  of  his  subjects  by  law.  A  law  giving  such  rights  may  be 
presumed  from  either  a  local  or  general  custom,  such  custom  being 
reasonable,  and  proved  to  have  existed  from  time  immemorial. 
Such  as  claim  under  the  former  must  plead  it,  and  establish 
their  pleas  by  proof  of  the  existence  of  such  a  custom  from  time 
immemorial. 

General  customs  were  in  ancient  times  stated  in  the  pleadings 
of  those  who  claimed  under  them,  —  as  the  custom  of  merchants, 
the  customs  of  the  realm  with  reference  to  innkeepers  and  carriers, 
and  others  of  the  same  description.  But  it  has  not  been  usual  for 
a  long  time  to  allude  to  such  customs  in  the  pleadings,  because  no 
proof  is  required  of  their  existence;  they  are  considered  as  adopted 
into  the  common  law,  and  as  such  are  recognised  by  the  Judges 
without  any  evidence.  These  are  called  customs,  because  they 
only  apply  to  particular  descriptions  of  persons,  and  do  not  affect  all 
the  subjects  of  the  realm;  but  if  they  govern  all  persons  belonging 
to  the  classes  to  which  they  relate,  they  are  to  be  considered  as 
public  laws,  — ■  as  an  act  of  Parliament  applicable  to  all  merchants, 
or  to  the  whole  body  of  the  clergy,  is  to  be  regarded  by  the 
Judges,  as  a  public  act. 

If  there  is  a  custom  regulating  the  right  of  the  owners  of  all 
lands  bordering  on  the  sea,  it  is  so  general  a  custom  as  need  not 
be  set  out  in  the  pleadings,  or  proved  by  evidence,  but  will  be 
taken  notice  of  by  the  Judges  as  part  of  the  common  law.  We 
think  there  is   a   custom  bv  which  lands   from  which  the  sea  is 


472  ACCRETION. 


No.  1.  —  E.  v.  Lord  Yarborough. 


gradually  and  imperceptibly  removed  by  the  alluvion  of  soil  be- 
comes the  property  of  the  person  to  whose  land  it  is  attached, 
although  it  has  been  the  fundus  maris,  and  as  such  the  property  of 
the  King.  Such  a  custom  is  reasonable  as  regards  the  rights  of  the 
Xing  and  the  subjects  claiming  under  it ;  beneficial  to  the  public  ; 
and  its  existence  is  established  by  satisfactory  legal  evidence. 

There  is  a  great  difference  between  land  formed  by  alluvion  and 
derelict  land.  Land  formed  by  alluvion  must  become  useful  soil 
by  degrees  too  slow  to  be  perceived;  little  of  what  is  deposited  by 
one  tide  will  be  so  permanent  as  not  to  be  removed  by  the  next. 
An  embankment  of  a  sufficient  consistency  and  height  to  keep  out 
the  sea  must  be  formed  imperceptibly.  But  the  sea  frequently 
retires  suddenly  and  leaves  a  large  space  of  land  uncovered. 

When  the  authorities  relative  to  these  subjects  are  considered, 
this  difference  will  be  found  to  make  a  material  distinction  in  the 
law  that  applies  to  derelict  lands,  and  to  such  as  are  formed  by 
alluvion.  Unless  trodden  by  cattle,  many  years  must  pass  away 
before  lands  formed  by  alluvion  would  be  hard  enough  or  suffi- 
ciently wide  to  be  used  beneficially  by  any  one  but  the  owner  of 
the  lands  adjoining.  As  soon  as  alluvion  lands  rise  above  the 
water,  the  cattle  from  the  adjoining  lands  will  give  them  consis- 
tency by  treading  on  them,  and  prepare  them  for  grass  or  agricul- 
ture by  the  manure  which  they  will  drop  on  them.  When  they 
are  but  a  yard  wide  the  owner  of  the  adjoining  lands  may  render 
them  productive.  Thus  lands  which  are  of  no  use  to  the  King 
will  be  useful  to  the  owner  of  the  adjoining  lands,  and  he  will 
acquire  a  title  to  them  on  the  same  principle  that  all  titles  to 
lands  have  been  acquired  by  individuals,  — -  viz..  by  occupation  and 
improvement. 

Locke,  in  a  passage  in  his  Treatise  on  Government,  in  which 
he  describes  the  grounds  of  the  exclusive  right  of  property  says  : 
"  God  and  man's  reason  commanded  him  to  subdue  the  earth  ; 
that  is,  improve  it  for  the  benefit  of  life,  and  therein  lay  out  some- 
thing upon  it  that  was  his  own,  his  labour.  He  that  in  obedience 
to  that  command  subdued,  tilled,  and  sowed  any  part  of  it, 
thereby  annexed  to  it  something  that  was  his  property  which 
another  had  no  title  to,  nor  could  without  injury  take  from 
him." 

This  passage  proves  the  reasonableness  of  the  custom  that  assigns 
lands  gained  by  alluvion  to  the  owner  of  the  lands  adjoining. 


ACCRETION.  47* 


No.  1.  —  R.  v.  Lord  Yarborough. 


The  reasonableness  is  further  proved  by  this,  that  the  land  so 
gained  is  a  compensation  for  the  expense  of  embankment,  and  for 
losses  which  frequently  happen  from  inundation  to  the  owners  of 
lands  near  the  sea. 

This  custom  is  beneficial  to  the  public.  Much  land  which 
would  remain  for  years,  perhaps  forever,  barren,  is  in  conse- 
quence of  this  custom  rendered  productive  as  soon  as  it  is  formed. 
Although  the  sea  is  gradually  and  imperceptibly  forced  back,  the 
land  formed  by  alluvion  will  become  of  a  size  proper  for  cultiva- 
tion and  use  ;  but  in  the  mean  time,  the  owner  of  the  adjoining 
lands  will  have  acquired  a  title  to  it  by  improving  it. 

The  original  deposit  constitutes  not  a  tenth  part  of  its  value,  the 
other  nine  tenths  are  created  by  the  labour  of  the  person  who  has 
occupied  it;  and,  in  the  words  of  Locke,  the  fruits  of  his  labour 
cannot,  without  injury,  be  taken  from  him. 

The  existence  of  this  custom  is  established  by  legal  evidence. 
In  Bracton,  bk.  2,  c.  2,  there  is  this  passage :  "  Item,  quod 
per  alluvionem  agro  tuo  flumen  adjecit,  jure  gentium  tibi  acqui- 
ritur.  Est  auteni  alluvio  lateris  incrementum,  et  per  alluvionem 
adjici  dicitur  quod  ita  paulatim  adjicitur  quod  intelligere  non 
possis  quo  momento  temporis  adjiciatur.  Si  autem  non  sit  lateris 
incrementum  contrarium  erit." 

In  a  treatise  which  is  published  as  the  work  of  Lord  Hale, 
treating  of  this  passage,  it  is  said  :  "  that  Bracton  follows  in  this 
the  civil  law  writers ;  and  yet,  even  according  to  this,  the  common 
law  doth  regularly  hold  between  parties.  But  it  is  doubtful  in 
case  of  an  arm  of  the  sea."  Hale,  De  Jure  Maris,  p.  28.  It  is  true 
that  Bracton  follows  the  civil  law,  for  the  passage  above  quoted 
is  to  be  found  in  the  same  words  in  the  Institutes,  lib.  2,  tit.  1,  §  20. 
But  Bracton,  by  inserting  this  passage  in  his  books  on  the  laws 
and  customs  of  England,  presents  it  to  us  as  part  of  those  laws 
and  customs.  Lord  LIale  admits  that  it  is  the  law  of  England  in 
cases  between  subject  and  subject ;  and  it  would  be  difficult  to 
find  a  reason  why  the  same  question  between  the  Crown  and  a 
subject,  should  not  be  decided  by  the  same  rule.  Bracton  wrote 
on  the  law  of  England,  and  the  situation  which  he  filled,  —  namely, 
that  of  Chief  Justice,  in  the  reign  of  Henry  the  Third,  —  gives  great 
authority  to  his  writings.  Lord  Hale,  in  his  History  of  the  Com- 
mon Law  (c.  7),  says,  that  it  was  much  improved  in  the  time  of 
Bracton.  This  improvement  was  made  by  incorporating  much  of 
the  civil  law  with  the  common  law. 


474  ACCRETION. 


No.  1.  —  It.  v.  Lord  Yarborough. 


We  know  that  many  of  the  maxims  of  the  common  law  are 
borrowed  from  the  civil  law,  and  are  still  quoted  in  the  language 
of  the  civil  law.  Notwithstanding  the  clamour  raised  by  our  an- 
cestors for  the  restoration  of  the  laws  of  Edward  the  Confessor, 
I  believe  that  these  and  all  the  Norman  customs  which  fol- 
lowed would  not  have  been  sufficient  to  form  a  system  of  law 
sufficient  for  the  state  of  society  in  the  times  of  Henry  the  Third. 
Both  courts  of  justice  and  law  writers  were  obliged  to  adopt  such 
of  the  rules  of  the  digest  as  were  not  inconsistent  with  our  prin- 
ciples of  jurisprudence.  Wherever  Bracton  got  his  law  from,  Lord 
Chief  Baron  Barker,  in  Fortescue,  408,  says,  "As  to  the  author- 
ity of  Bracton,  to  be  sure,  many  things  are  now  altered,  but  there 
is  no  colour  to  say  it  was  not  law  at  that  time.  There  are  many 
things  that  have  never  been  altered,  and  are  now  law."  The  law 
must  change  with  the  state  of  things  to  which  they  relate  ;  but, 
according  to  Chief  Baron  Barker,  the  rules  to  be  found  in  Bracton 
are  good  now  in  all  cases  to  which  those  rules  are  applicable.  But 
the  authority  of  Bracton  has  been  confirmed  by  modern  writers, 
and  by  all  the  decided  cases  that  are  to  be  found  in  the  books. 
The  same  doctrine  that  Bracton  lays  down  is  to  be  found  in  2 
Boll's  Abr.  170;  in  Com.  Dig.  tit.  Prerogative  (I).  61);  in  Callis 
(Broderip's  edition),  p.  51  ;  and  in  2  Bl.  Com.  261. 

In  the  case  of  The  Abbot  of  Peterborough  (Hale,  I)e  Jure  Maris,  p. 
29),  it  was  holden:  "quod,  secundum  consuetudinem  patriae,  do- 
mini  maneriorum  prope  mare  adjacentium,  habebunt  marettum  et 
sabulonem  per  fluxus  et  renuxus  maris  per  temporis  incrementum 
ad  terras  suas  costerse  maris  adjacentes  projecta."  In  the  treatise 
of  Lord  LIale  it  is  said,  "  Here  is  custom  laid,  and  he  relies  not 
barely  on  the  case  without  it."  But  it  is  a  general,  and  not  a 
local  custom,  applicable  to  all  lands  near  the  sea,  and  not  to  lands 
within  any  particular  district.  The  pleadings  do  not  state  the 
lands  to  be  within  any  district,  and  such  a  statement  would  have 
been  necessary  if  the  custom  pleaded  were  local.  The  consuetudo 
■patrice  means  the  custom  of  all  parts  of  the  country  to  which  it 
can  be  applied,  —  that  is,  in  the  present  case,  all  such  parts  as 
adjoin  the  sea, 

The  case  of  The  King  v.  Oldsworth  (Hale,  De  jure  Maris,  p.  14), 
confirms  that  of  The  Abbot  of  Peterborough  as  to  the  right  of  the 
owner  of  the  adjoining  lands  to  such  lands  as  were  "  secundum 
majus  et  minus  prope  tenementa  sua  projecta,"  ib.   p.   29.     That 


ACCRETION.  475 


No.  1.  —  R.  v.  Lord  Yarborough. 


■case  was  decided  against  the  owner,  because  he  also  claimed 
<lerelict  lands  against  the  Crown. 

Here  it  will  be  observed  that  there  is  a  distinction  made  be- 
tween lands  derelict  and  lands  formed  by  alluvion, —  which  distinc- 
tion, I  think,  is  founded  on  the  principle  that  I  have  ventured  to 
lay  down;  namely,  that  alluvion  must  be  gradual  and  impercep- 
tible, but  the  dereliction  of  land  by  the  sea  is  frequently  sudden, 
leaving  at  once  large  tracts  of  its  bottom  uncovered,  dry,  and  tit 
for  the  ordinary  purposes  for  which  land  is  used.  But  still  what 
was  decided  in  this  case  is  directly  applicable  to  the  question  pro- 
posed to  us.  The  Judges  are,  therefore,  warranted  by  justice,  by 
public  policy,  by  the  opinions  of  learned  writers,  and  the  author- 
ity of  decided  cases,  in  giving  to  your  Lordship's  question  the 
•answer  which  they  have  directed  me  to  give. 

My  Lords,  the  answer  to  your  Lordship's  question  is  the  unani- 
mous opinion  of  all  the  Judges  wdio  heard  the  arguments  at  your 
Lordship's  bar.  For  the  reasons  given  in  support  of  that  opinion 
I  alone  am  responsible.  Most  of  my  learned  brothers  were  obliged 
to  leave  town  for  their  respective  circuits  before  I  could  write 
what  I  have  now  read  to  your  Lordships.  I  should  have  spared 
your  Lordships  some  trouble  if  I  had  had  time  to  compress  my 
thoughts  ;  but  I  am  now  in  the  midst  of  a  very  heavy  Nisi  Prizes  sit- 
ting, and  am  obliged  to  take  from  the  hours  necessary  for  repose  the 
time  that  I  have  employed  in  preparing  this  opinion.  If  it  wants 
that  clearness  of  expression  which  is  proper  for  an  opinion  to  be 
delivered  by  a  judge  to  this  House,  I  hope  that  your  Lordships 
will  consider  what  I  have  stated  as  a  sufficient  apology  for  this 
defect. 

The  Lord  Chancellor.  My  lords,  I  beg  to  express  my  thanks 
to  the  learned  Chief  Justice,  and  to  the  Judges,  for  the  attention 
they  have  paid  to  this  subject;  and  I  have  only  to  add  that  I  en- 
tirely concur  in  the  conclusion  at  which  they  have  arrived  ;  and 
I  would  recommend  to  your  Lordships,  as  a  necessary  consequence 
of  the  opinion  which  has  been  expressed,  that  the  judgment  of  the 
Court  of  King's  Bench  upon  the  matter  should  be  affirmed. 

Earl  of  Eldox.  My  Lords,  I  heard  only  part  of  the  argument, 
and  therefore  I  have  some  difficulty  in  stating  my  opinion  in  this 
case  ;  but  having  had  my  attention  called  to  subjects  of  the  same 
nature  on  former  occasions,  it  does  appear  to  me,  I  confess,  after 
reading  the  finding  of  the  jury,  that  the  opinion  of  the  Judges  must 


476  ACCRETION. 


No.  1.  —  E.  v.  Lord  Yarborough.  —  Notes. 


be  that  which  the  learned  Chief  Justice  has  now  expressed.  I 
therefore  concur  in  the  opinion  the  Lord  Chief  Justice  has 
expressed.  Judgment  affirmed. 

ENGLISH  NOTES. 

The  case  of  Scratton  v.  Brown  (K.  B.  1825),  4  B.  &  C.  485,  though 
rather  a  question  of  boundaries  by  description  than  of  accretion,  may 
be  cited  in  connection  with  tbe  principal  case.  A  deed  of  grant  was 
made  by  the  lord  of  a  manor  in  Essex  of  a  certain  boat-house  and  build- 
ings, and  also  all  the  sea-ground,  oyster-layings,  shores,  and  fisheries 
described  as  extending  from  the  south  at  high-water  mark  to  the  north 
at  low- water  mark  and  between  certain  limits  on  the  east  and  west. 
Since  the  date  of  the  grant  the  sea  had  imperceptibly  and  gradually 
encroached  on  the  land,  and  consequently  the  high  and  low  water 
mark  had  altered  their  position.  It  was  held  that  by  the  deed  the 
right  of  the  soil  in  that  portion  of  the  land  which  from  time  to  time 
lay  between  high  and  low  water  mark,  passed  to  the  grantees. 

In  the  case  of  Hull  and  Selby  11;/.  Co.  (1889),  5  M.  &  W.  327;  8  L.  J. 
Exch.  260,  the  sea  had  encroached,  and  it  had  been  found  as  a  fact  in  a 
case  stated  by  an  order  made  on  the  Equity  side  of  the  Exchequer,  that 
the  encroachment  had  been  by  slow  and  imperceptible  degrees  so  that  no 
particular  period  thereof  could  be  ascertained.  On  this  finding  the  Court 
pronounced  judgment  for  the  Crown.  Ali  erson,  B.,  stated  the  law  as 
follows  (5  M.  &  W.  p.  332) :  "  Suppose  the  Crown,  being  the  owner  of  the 
foreshore. —  that  is,  the  space  between  high  and  low  water  mark, —  grants 
the  adjoining  soil  to  an  individual,  and  the  water  gradually  recedes 
from  the  foreshore,  no  intermediate  period  of  the  change  being  percep- 
tible; in  that  case  the  right  of  the  grantee  of  the  Crown  would  go  for- 
ward with  the  change.  On  the  other  hand,  if  the  sea  gradually  covered 
the  land  so  granted,  the  Crown  would  be  the  gainer  of  the  land.  The 
principle  laid  down  by  Lord  Hale,  that  the  party  who  suffers  the  loss 
shall  be  entitled  also  to  the  benefit,  governs  and  decides  the  question. 
That  which  cannot  be  perceived  in  its  progress  is  taken  to  be  as  if  it 
never  had  existed  at  all." 

In  the  case  of  Att.-General  v.  Bees  (1859),  4  De  G.  &  J.  55,  the 
question  was  as  to  the  title  of  the  Crown  to  certain  land  gained  from 
the  sea.  Lord  Chelmsford,  C.  (p.  69),  laid  it  down,  that  if  the  gain 
had  been  "rapid"  in  the  sense  of  being  ''perceptible,"  the  Crown 
would  be  entitled.  But  he  thought  that  if  the  changes,  though  they 
could  not  be  discerned  in  their  progress,  could  at  the  expiration  of 
some  period  of  time  be  perceived  to  have  taken  place,  a  question  might 
arise,    whether   circumstances    might    not   exist   whereby    the    original 


ACCRETION.  477 


No.  1.  —  E.  v.  Lord  Yarborough.  —  Notes. 


limits  of  the  Crown's  right  and  that  of  the  owner  of  the  adjoining  land 
are  now  capable  of  being  distinctly  ascertained.  He  then  cited  Lord 
Tenterden's  comment  upon  the  word  "imperceptible"  in  the  prin- 
cipal case  (p.  469,  supra),  and  observed  ( 1  De  G.  &  J.  71)  that  it  was 
not  in  accordance  with  the  great  authority  upon  the  subject,  Lord  Hale 
{Hargrave's  Law  Tracts,  p.  28),  who  says:  "This  jus  alluvion  is  is  de 
jure  communi,  by  the  law  of  England,  the  King's, —  viz.,  if  by  any  marks 
or  measures  it  can  be  known  what  is  so  gained;  for  if  the  gain  be  so 
insensible  and  indiscernible  by  any  limits  or  marks  that  it  cannot  be 
known,  idem  est  tion  esse  et  huh  apparere:"  Issues  were  accordingly 
directed  to  try  the  facts  {inter  alia)  Whether  the  variation  has  been 
slow,,  gradual,  and  imperceptible,  and  Whether  there  are  or  were  any 
marks  or  bounds  by  which  the  natural  line  of  high  water  can  now  be 
ascertained  and  laid  down. 

What  became  of  the  case  ultimately  does  not  appear  in  the  Reports; 
but  with  reference  to  the  latter  part  of  Lord  Chelmsford's  judgment 
and  to  the  last  issue  directed  it  should  be  observed,  that,  whatever  may 
have  been  Lord  Hale's  meaning  in  the  passage  referred  to,  the  sugges- 
tion that,  although  the  changes  have  been  imperceptible  in  their  pro- 
gress, the  question  of  the  boundary  may  still  have  to  be  determined  by 
ancient  land-marks,  cannot  be  reconciled  with  any  intelligible  view  of 
the  ratio  decidendi  of  the  House  of  Lords  in  Lord  YarborouglCs  Case, 
unless  the  grant  had  been  made  by  a  description  referring  to  the  land- 
marks,—  what  would  in  Scotch  law  be  termed  a  bounding  charter, — 
which  would  raise  a  different  question. 

In  1884,  a  question  very  similar  to  that  in  Lord  Yarborough's  Case 
came  before  the  Queen's  Bench  Division  in  Att.-Gen.  v.  Reeve,  reported 
1  Times  Rep.  675.  It  arose  out  of  accretions  to  the  hind  by  recession 
of  the  sea  at  Lowestoft  in  Suffolk.  To  establish  the  title  of  the  Crown 
to  the  land  in  question,  an  action  was  brought  in  the  nature  of  an 
information  in  .the  Exchequer.  The  defendant  was  the  lord  of  the 
manor  in  the  adjacent  lands,  who  claimed  the  property  as  an  accretion 
to  his  estate  by  imperceptible  addition.  The  title  of  the  Crown  to  the 
foreshore  in  the  locality  was  admitted.  It  was  alleged  on  the  part  of 
the  Crown  that  the  recession  of  the  sea  in  the  place  in  question  was 
entirely  caused  by  the  building  of  a  certain  pier  and  works  which  had 
been  then  recently  constructed  on  the  foreshore  by  the  grantees  of  the 
Crown;  and  it  was  in  effect  admitted  that  since  the  erection  of  these 
works  the  recession  of  the  sea  had  been  more  rapid.  The  evidence 
most  relied  on  by  the  Crown  was  that  of  two  witnesses,  who,  from  then- 
residence  and  occupations,  had  special  means  of  observation,  to  the 
effect  that  since  the  construction  of  the  above  mentioned  works  the 
recession  of  the  sea  had  been  going  on  rapidly,  and  was  visible  from 


478  ACCRETION. 


No.  1.— It.  v.  Lord  Yarborougb,. —  Notes. 


month  to  month;  and  that,  during  the  prevalence  of  strong  winds  from? 
N.  W.  to  N.  combined  with  high  tides,  the  recession,  by  reason  of  large- 
fresh  deposits  of  sand  and  shingle,  could  be  perceived  from  day  to  day_ 
On  this  evidence  the  Court  gave  judgment  for  the  Crown. 

In  India,  where  the  changes  in  the  course  of  great  rivers  frequently" 
raise  difficult  questions  of  property,  the  criterion  has  been  laid  down  by 
legislative  authority;  Bengal  Regulations,  XI.  of  1825.  The  framers 
of  the  Regulation  doubtless  had  in  view  the  rule  in  Lord  Yarborough's 
Case,  which  appears  to  be  consonant  to  the  general  customary  law  of 
India:  Doe  d.  Seebkristo  v.  Ettst  India  Coqvpany  (1856),  6  Moo.  Ind. 
App.  267,  283,  285.  It  is  laid  down  by  section  4  of  this  Regulation 
(as  to  cases  where  there  is  no  local  usage)  as  follows :  — 

"First.  When  land  maybe  gained  by  gradual  accession,  whether 
from  the  recess  of  a  river,  or  of  the  sea,  it  shall  be  considered  ait 
increment  to  the  tenure  of  the  person  to  whose  land  or  estate  it  is 
thus  annexed.    .    .    . 

"  Second.  The  above  rule  shall  not  be  considered  applicable  to  cases 
in  which  a  river,  by  a  sudden  change  of  its  course,  may  break  through 
and  intersect  an  estate,  without  any  gradual  encroachment,  or  may  by 
the  violence  of  its  stream  separate  a  considerable  piece  of  land  from 
one  estate,  and  join  it  to  another  estate,  without  destroying  the  iden- 
tity and  preventing  the  recognition  of  the  land  so  removed.  In  such 
cases  the  land,  on  being  clearly  recognised,  shall  remain  the  property  of 
its  original  owner. 

"Third.  When  a  chur  or  island  may  be  thrown  up  in  a  large  and 
navigable  river  (the  bed  of  which  is  not  the  property  of  an  individual,) 
or  in  the  sea,  and  the  channel  of  the  river,  or  sea,  between  such  island 
and  the  shore  may  not  be  fordable,  it  shall,  according  to  established 
usage,  be  at  the  disposal  of  Government. —  But  if  the  channel  between 
such  island  and  the  shore  be  fordable  at  any  season  of  the  year,  it  shall 
-be  considered  as  an  accession  to  the  land  tenure  or  tenures  of  the  person 
or  persons,  whose  estate  or  estates  may  be  most  contiguous  to  it,  subject 
to  the  several  provisions  specified  in  the  first  clause  of  this  section,  with, 
respect  to  increment  of  land  by  gradual  accession." 

The  cases  in  the  Bengal  courts  upon  the  questions  touched  by  this 
Regulation  are  very  numerous,  and  generally  resolve  themselves  into 
questions  of  evidence  as  to  the  identity  of  the  tracts  of  land  which 
emerge,  and  frequently  as  to  the  identity  and  ownership  of  the  tract  in 
respect  of  which  the  accretion  by  alluvion  is  claimed.  The  following; 
cases,  decided  by  the  Judicial  Committee  of  the  Privy  Council,  may  be 
referred  to  as  samples  :  — 

Mussumat  Isnam  Bandi  v.   //'  id  Ghnza  (4848),  4  Moo.  Ind.. 


ACCRETION. 


479 


No.  1.  —  R.  v.  Lord  Yarborough. — Notes. 


App.  403;  the  case  of  Doe  d.  Seebkristo  v.  East  India  Company  (1856), 
above  cited;  Sree  Eckowrie  Singv.  Heeraloll  Seal  (1868),  1-  Moo.  End. 
App.  130;  and  Rughoobur  Dyal  Sahoo  v.  Kishen  Pertab  Sahee  (1879), 
L.  R.  G  Ind.  App.  211. 

AMERICAN   NOTES. 

The  doctrine  of  the  principal  case  prevails  universally  in  this  country,  both 
in  respect  to  accretions  and  alluvion  or  reliction. 

A  riparian  proprietor  is  entitled  to  all  accessions  made  to  his  land  by  the 
retreating  of  the  river  from  its  former  limits,  or  by  the  slow  and  secret 
deposit  of  sand  and  other  substances,  so  as  to  leave  the  soil  theretofore  inun- 
dated uncovered  by  water.  Hagan  v.  Campbell,  8  Porter  (Alabama),  9;  33 
Am.  Dec.  267,  and  note,  p.  '270,  both  citing  the  principal  case.  Imperceptible 
accretions  to  the  bank  of  a  river  from  washings  from  the  opposite  bank,  belong- 
to  the  proprietor  of  the  land  to  which  they  become  affixed.  Spigener  v. 
Gooner,8  Richardson  Law  (South  Carolina),  301;  64  Am.  Dec.  755;  Geirishv, 
Plough,  48  New  Hampshire,  9;  97  Am.  Dec.  561,  citing  the  principal  case; 
Warren  v.  Chambers,  25  Arkansas,  120;  4  Am.  Rep.  23;  91  Am.  Dec.  538; 
Mulry  v.  Norton,  100  New  York,  420  ;  53  Am.  Rep.  200,  citing  the  principal 
case;  Inhabitants  of  Deer  fold  v.  A fats,  17  Pickering  (Mass.),  41;  28  Am.  Dec. 
270;  Lovingston  v.  County  of  St.  Clair,  04  Illinois,  50;  16  Am.  Rep.  510,  citing 
the  principal  case,  and  affirmed  in  the  United  States  Supreme  Court,  23  Wal- 
lace, 68;  Adam's  v.  Frothingham,  3  Massachusetts,  352;  3  Am.  Dec.  151;  Ball 
v.  Slack,  2  Wharton  (Penn.),  508;  30  Am.  Dec.  278;  Municipality  v.  Neva 
Orleans  Cotton  Press,  8  Louisiana  Annual,  122;  30  Am.  Dec.  024  (with  quota- 
tions from  Horace  and  Virgil !)  ;  Welles  v.  Bailey,  55  Connecticut,  292  ;  3  Am. 
St.  Rep.  18  ;  Cook  v.  City  of  Burlington,  30  Iowa,  94  ;  0  Am.  Rep.  649  ;  Cook  v. 
McClure,  58  New  York,  437  ;  17  Am.  Rep.  270;  Nebraska  v.  Iowa,  113  United 
States,  359. 

It  is  said  in  the  note,  33  Am.  Dec.  280 :  "  The  general  rules  laid  clown  for 
alluvion  seem  to  govern  as  well  if  its  formation  was  due  to  an  artificial  as  if 
to  a  natural  cause;  Lovingston  v.  St.  Clair,  04  Illinois,  50;  liaise//  v.  McCor- 
mick,  18  Xew  York,  119;  Godfrey  v.  City  of  Alton,  12  Illinois,  37.  In  Lock- 
woody.  N.  Y.  cy  H.  R.  R.  Co.,  37  Connecticut,  387,  lands  reclaimed  from  the 
waters  of  a  harbour  were  treated  in  the  same  light  as  accretions  from  natural 
causes."     But  Halsey  v.  McCormick,  supra,  directly  to  the  contrary. 

The  doctrine  of  accretion  does  not  apply  to  an  artificial  body  of  water. 
Cook  v.  McClure,  58  New  York,  437;  17  Am.  Rep.  270. 

The  word  "  imperceptible "  refers  to  the  mode  of  accretion,  not  to  the 
result.  It  is  sufficient  if  the  deposit  cannot  be  detected  by  the  eye  in  any  mo- 
ment of  time.  Lovingston  v.  St.  Clair,  64  Illinois,  50;  10  Am.  Rep.  510  ;  23 
Wallace  (U.  S.  Sup.  Ct.),  68;  Kraut  v.  Crawford,  18  Iowa,  554  ;  and  Benson  v. 
Morrow,  01  Missouri,  352,  where  the  court  dissent  from  the  notion  that  the 
deposit  need  be  imperceptible,  even  in  the  case  of  a  stream  the  title  to  whose 
bed  is  in  the  public. 


480  ACCRETION. 


No.  2.  ■ —  Doe  d.  Christinas  v.  Oliver.  —  Rule. 


ACCRETION   (of  Title). 

No.  2.  — DOE   d.    CHRISTMAS  v.  OLIVER. 
(k.  b.  1829.) 

No.  3.  — SWAN   v.  WESTERN   BANK  OF   SCOTLAND. 

(COURT    OF    SESSION,    SCOTLAND,    1866.) 
RULE. 

The  title  of  a  person  derived  from  one  who  has  no  title,  or 
whose  title  is  imperfect,  is  validated  in  the  former  person 
by  a  conveyance  or  act  in  the  law  whereby  the  right  would 
have  become  completely  vested  in  the  latter  person. 

This  principle  has  been  summarised  in  the  maxim,  Jus 
superveniens  auctori  accrescit  successori ;  or,  as  it  has  been 
expressed  in  a  barbarous  tongue,  Hie  interest,  ivhen  it 
accrues,  feeds  the  estoppel. 

Doe  d.  Christmas  v.  Oliver. 

5  Manning  &  Ryland,  202. 

Ejectment  for  certain  messuages  and  lands,  situate  in  the  parish 
of  St.  Margaret,  in  the  town  and  borough  of  Leicester.  Plea,  not 
guilty.  At  the  trial,  before  D'Ovley,  Serjt.,  at  the  Leicester  Sum- 
mer Assizes,  1828,  a  verdict  was  found  for  the  plaintiff  by  consent, 
subject  to  the  opinion  of  this  Court  upon  the  following  case:  — 

Theophilus  Holmes,  being  seized  in  fee  of  certain  tenements,  by 
his  last  will  and  testament  in  writing,  bearing  date  29th  September, 
1784,  duly  executed  and  attested  for  the  purpose  of  passing  real 
estates,  gave  and  devised  as  follows  :  "  I  give  and  devise  the  mes- 
suage or  tenement  wherein  I  now  dwell,  with  the  appurtenances 
thereto  belonging,  and  the  use  of  all  my  household  goods,  plate, 
linen,  and  other  household  furniture  of  every  sort  and  kind  which 
shall  be  about  my  said  messuage  or  tenement  at  the  time  of  my 
decease,  and  also  my  messuage  or  tenement  in  Belgrave  Gate,  Lei- 
cester,  unt<>  my  wife,  Christian  Holmes,  fur  and  during  her  natural 


ACCRETION.  481 


No.  2.  —  Doe  d.  Christmas  v.  Oliver. 


life;  and  from  and  after  her  decease,  I  give  and  devise  the  said 
messuage  or  tenement  wherein  I  now  dwell,  with  the  appurte- 
nances, and  also  my  said  messuages  or  tenements"  (in  the  said 
will  described,  being  those  for  the  recovery  of  which  these  actions 
are  brought),  "  with  warehouses,  stables,  and  other  building,  yards, 
gardens,  and  backsides  thereto  belonging,  in  case  I  shall  die  without 
issue  (but  not  otherwise),  unto,  between,  and  among  all  the  children 
of  my  brother,  the  Rev.  Mr.  William  Holmes,  that  shall  be  living 
at  the  time  of  my  said  wife's  decease,  and  to  their  heirs  and  assigns 
forever." 

The  testator  died,  seized  of  the  premises  in  question,  in  September, 
1785,  without  issue,  and  without  altering  or  revoking  his  said  will. 
On  his  death  his  widow,  who  afterwards  married  Joseph  Chamber- 
lain, entered  into  possession  of  the  tenements  in  question,  and  so 
continued  until  the  time  of  her  death,  which  happened  in  or  about 
September,  1826.  The  William  Holmes,  mentioned  in  the  will  of 
the  testator,  had  issue  three  children  only,  — viz.,  James  Harriman, 
Ann-Alary,  and  Thomas  Bradgate.  James  Harriman  and  Thomas 
Bradgate  Holmes  died  without  issue  in  the  lifetime  of  the  testator's 
widow.  Ann-Mary  Holmes  married  Joseph  Brooks  Stephenson, 
and  was  the  only  child  of  William  Holmes  living  in  March,  1814, 
and  at  the  time  of  the  death  of  the  testator's  widow. 

On  the  4th  March,  1814,  and  during  the  lifetime  of  the  testator's 
widow,  by  indenture  duly  made  between  the  said  J.  B.  Stephenson 
and  Ann-Mary,  his  wife  (therein  described  as  devisee  named  in  the 
last  will  of  the  said  Theophilus  Holmes,  then  deceased),  of  the  first 
part,  J.  Connor,  Gent.,  of  the  second  part,  Charles  Waldron  of  the 
third  part,  and  Thomas  Chandless,  Gent.,  a  trustee  on  behalf  of  the 
said  Charles  Waldron,  and  also  of  the  said  J.  B.  Stephenson  and 
Ann-Mary  his  wife,  of  the  fourth  part;  the  latter,  in  consideration 
of  £600,  granted  to  Charles  Waldron,  his  executors,  administrators, 
and  assigns,  for  and  during  their  natural  lives  and  the  life  of  the 
survivor,  an  annuity  of  £100  to  be  charged  upon  and  issuing  out  of 
the  said  messuages  or  tenements  devised  by  the  will  of  Theophilus 
Holmes;  and  for  better  securing  the  payment,  granted,  bargained, 
and  sold  to  Thomas  Chandless,  his  executors,  &c,  all  the  said  pre- 
mises, to  hold,  from  and  immediately  after  the  decease  of  Christian 
Holmes  for  the  term  of  ninety-nine  years.  And  then,  after  reciting 
that  the  said  J.  B.  Stephenson  and  Ann-Mary,  his  wife,  did  as  of 
Hilary  term  then  last,  levy  before  the  court  of  C.  P.  at  Westminster 

VOL.   I.  — 01 


482  ACCRETION. 


No.  2.  —  Doe  d.  Christmas  v.  Oliver. 


unto  T.  Chandless  and  his  heirs,  one  fine  sur  conusance  dc  droit  come 
ceo,  &c,  of  the  said  premises,  by  the  description  of  seven  messuages, 
seven  gardens,  and  one  acre  of  land,  with  the  appurtenances,  in  tin- 
parish  of  St.  Margaret,  in  the  town  and  borough  of  Leicester,  of 
which  fine  no  uses  had  as  yet  then  been  declared,  it  was  by  the 
said  indenture  agreed  and  declared  that  the  said  fine  should  be  and 
enure,  in  the  first  place,  for  confirming  the  said  yearly  rent-charge 
of  £100,  and  in  the  next  place,  to  the  use  of  T.  Chandless,  his  ex- 
ecutors, &c,  for  and  during  the  said  term  of  ninety-nine  years.  The 
said  last  mentioned  indenture  was  duly  executed  by  the  parties,  and 
a  receipt  for  the  consideration  money  indorsed,  and  a  memorial  of 
the  same  was  duly  enrolled  in  the  Court  of  Chancery.  The  fine 
referred  to  by  the  said  indenture  was  duly  levied  according  to  the 
same  in  Hilary  term,  54  Geo.  III.,  with  proclamations.  On  the  11  tli 
April,  1823,  T.  Chandless  died,  having  made  a  will  and  several  codi- 
cils, and  appointed  Sir  William  Long,  Knt,  and  Henry  Gore  Chand- 
less, executors.  On  the  27th  January,  1827,  by  indenture  of  that 
date,  between  the  said  C.  Waldron  of  the  first  part,  the  said  execu- 
tors of  T.  Chandless,  of  the  second  part,  Newbold  Kinton,  one  of 
the  lessors  of  the  plaintiff,  of  the  third  part,  and  James  Christmas, 
one  other  of  the  said  lessors,  of  the  fourth  part,  for  the  consideration 
therein  expressed,  the  said  annuity  was  assigned  to  the  said  N. 
Kinton  ;  and  the  said  term  of  ninety-nine  years  for  securing  the 
same  was  assigned  to  the  said  J.  Christmas.  On  the  4th  June, 
1827,  £1275  became  due  in  respect  of  the  said  annuity.  The  day 
of  the  demises  laid  in  the  declaration  is  the  1st  November,  1827. 

The  questions  for  the  opinion  of"  the  Court  are,  First,  whether 
A.  M.  Stephenson,  who  was  the,  only  child  of  William  Holmes 
living  on  the  4th  March,  1814,  and  at  the  time  of  the  death  of 
Christian  Holmes  (afterwards  Chamberlain),  took  a  vested  or  con- 
tingent remainder  under  and  by  virtue  of  the  will  of  Theophilus 
Holmes ;  secondly,  whether  the  fine  levied  by  Mr.  and  Mrs. 
Stephenson  worked  any  forfeiture  of  the  estate  of  the  latter,  or 
transferred  any  interest  therein. 

The  case  was  argued  at  the  sittings  in  Banc  after  Trinity  Term, 
1827,  by  Preston  (with  whom  was  Denman)  for  the  plaintiff,  and 
by  N.  R  Clarke,  for  the  defendant. 

It  was  admitted,  on  the  part  of  the  plaintiff,  that  the  estate  given 
by  Theophilus  Holmes  to  the  children  of  William  Holmes  was  con- 
tingent during  the  lifetime  of  the  testator's  widow  ;  but  it  was  con- 


ACCRETION.  483 


No.  2.  —  Doe  d.  Christinas  v.  Oliver. 


tended  that  the  fine  levied  by  the  daughter  of  \V.  Holmes,  though 
operative  only  by  way  of  estoppel  during  the  lifetime  of  the  testa- 
tor's widow,  operated  after  her  death,  when  the  contingency  hap- 
pened, on  the  estate  which  then  became  vested  in  the  daughter  of 
W.  Holmes.  And  the  eases  of  Kick  v.  Edwards,  3  P.  Wins.  372  ; 
Helps  v.  Hereford,  2  Barn.  &  Aid.  242 ;  and  Davies  v.  Bush,  1  M'Clel. 
&  Y.  58,  were  cited  and  relied  on. 

For  the  defendant,  it  was  contended  that  the  estate  given  to  the 
daughter  of  W.  Holmes  could  not  be  conveyed  by  the  tine  levied 
during  the  lifetime  of  the  widow  of  T.  Holmes,  the  testator,  because 
a  contingent  remainder  could  not  be  so  conveyed;  and,  therefore, 
that  the  estate  still  remained  vested  in  Mr.  and  Mrs.  Stephenson. 
That  the  fine  levied  by  them  operated  by  way  of  estoppel  only,  and 
that  of  that  a  stranger  was  not  entitled  to  take  advantage.  And 
for  the  last  position  Doc  d.  Brum  v.  Martya,  2  Man.  &  Ry.  485  : 
8  B.  &  C.  497,  was  cited  and  relied  on. 

The  Court  took  time  to  consider  of  their  judgment,  which  was 
now  delivered  by 

Bayley,  J.  This  case  depended  upon  the  effect  of  a  tine  levied 
by  a  person  who  had  a  contingent  remainder  in  fee.  The  short 
facts  were  these ;  Ann-Mary,  the  wife  of  Joseph  Brooks  Stephen- 
son, was  entitled  to  an  estate  in  fee  upon  the  contingency  of  her 
surviving  Christian,  the  widow  of  Theophilus  Holmes  ;  and  she 
and  her  husband  conveyed  the  premises  to  Thomas  Chandless  for 
a  term  of  ninety-nine  years,  and  levied  a  fine  to  support  that  con- 
veyance. Christian,  the  widow,  died,  leaving  Mrs.  Stephenson 
living;  so  that  the  contingency,  upon  which  the  limitation  of  the 
estate  to  Mrs.  Stephenson  depended,  happened,  and  this  ejectment 
was  brought  by  the  assignees  of  the  executors  of  Thomas  Chandless, 
in  whom  the  term  of  ninety-nine  years  was  vested.  It  was  admitted 
in  argument,  on  the  part  of  the  defendant,  that  the  fine  was  binding 
upon  Mr.  and  Mrs.  Stephenson,  and  all  who  claimed  under  them, 
by  estoppel  ;  but  it  was  insisted  that  such  fine  operated  by  way  of 
estoppel  only  ;  that  it,  therefore,  bound  only  parties  and  privies. 
not  strangers  ;  that  the  defendant,  not  being  proved  to  come  in 
under  Mr.  and  Mrs.  Stephenson,  was  to  be  deemed,  not  a  privy, 
but  a  stranger ;  and  that,  as  to  him,  the  estate  was  to  be  con- 
sidered as  still  remaining  in  Mr.  and  Mrs.  Stephenson.  Tn  sup- 
port of  this  position  reliance  was  placed  upon  the  latter  part  of  the 
judgment  delivered  by  me  in  tli ■>  case  of  Doe  d.  Bruiie  v.  Martyn, 


484  ACCRETION. 


No.  2.  —  Doe  d.  Christmas  v.  Oliver. 


and  that  part  of  the  judgment  certainly  countenances  the  present 
defendant's  argument.  But  the  reasoning  in  that  case  proceeds 
upon  the  supposition  that  a  fine  by  a  contingent  remainder-man 
operates  by  estoppel,  and  by  estoppel  only  ;  its  operation  by  estop- 
pel, which  is  indisputable;  was  sufficient  for  the  purpose  of  that 
decision.  Whether  it  operated  by  estoppel  only,  or  whether  it  had 
a  further  operation,  was  perfectly  immaterial  in  that  case  ;  and  the 
point  did  not  there  require  that  investigation  which  the  discussion 
of  this  case  has  rendered  necessary.  We  have,  therefore,  given  the 
subject  that  further  consideration  which  it  required,  and  we  are 
satisfied,  upon  the  authorities,  that  a  fine  by  a  contingent  remainder- 
man, though  it  operates  by  estoppel,  does  not  operate  by  estoppel 
only,  but  has  an  ulterior  operation  when  the  contingency  happens ; 
that  the  estate  which  then  becomes  vested  feeds  the  estoppel ;  and 
that  the  fine  operates  upon  that  estate,  as  though  that  estate  had 
been  vested  in  the  conusors  at  the  time  the  fine  was  levied. 

The  first  authority  which  it  is  necessary  to  notice  is  Rawlins 
Case,  4  Co.  Rep.  ~>2.  There,  Cartwright  demised  land,  not  his  own, 
to  Weston  for  six  years.  Rawlins,  who  owned  the  land,  demised  it 
to  Cartwright  for  twenty-one  years  ;  and  Cartwright  re-demised 
it  to  Rawlins  for  ten  years.  Tt  was  resolved  that  the  lease  by  Cart- 
wright, when  he  had  nothing  in  the  land,  was  good  against  him  by 
conclusion,  and  that  when  Rawlins  re-demised  to  him,  then  was 
his  interest  bound  by  the  conclusion;  and  that  when  Cartwright 
re-demised  to  Rawlins,  then  was  Rawlins  concluded  also.  Rawlins, 
indeed,  was  bound  as  privy,  because  lie  came  in  under  Cartwright; 
but  the  purpose  for  which  I  cite  this  case  is,  to  show  that  as  soon 
as  Cartwright  got  the  land  his  interest  in  it  was  bound.  In  Weak 
v.  Lower,  Pollexf.  54,  the  case  was  thus  :  Thomas,  a  contingent 
remainder-man  in  fee,  demised  to  Grylls  for  five  hundred  years, 
and  levied  a  fine  to  Grylls  for  five  hundred  years,  and  died.  The 
contingency  happened,  and  the  remainder  vested  in  the  heir  of 
Thomas;  and  whether  this  demise  was  good  as  against  the  heir  of 
Thomas  was  the  question.  It  was  argued  before  Hale,  C.  J.,  and 
his  opinion  was,  that  the  fine  did  operate  at  first  by  conclusion,  and 
passed  no  interest,  but  bound  the  heir  of  Thomas ;  that  the  estate 
which  came  to  the  heir  when  the  contingency  happened,  fed  the 
estoppel ;  and  then  the  estate  by  estoppel  became  an  estate  in 
interest,  and  of  the  same  effect  as  if  the  contingency  had  happened 
before  the  fine  was  levied;   and  he  cited  Rawlins1  Case,  4  Co.  Rep. 


ACCRETION.  485 


No.  2.  —  Doe  d.  Christmas  v.  Oliver. 


53,  in  which  it  was  held  that  if  a  man  leased  land  in  which  he  had 
nothing,  and  afterwards  bought  the  land,  such  lease  would  be  good 
against  him  by  conclusion,  but  nothing  in  interest  till  he  bought  the 
land;  but  that  as  soon  as  he  bought  the  land,  it  would  become  a 
lease  in  interest.  The  case  was  again  argued  before  the  Lord  Chan- 
cellor, Lord  Chief  Justice  Hale,  Wild,  Ellis,  and  Windham,  Jus- 
tices, and  they  all  agree  that  the  tine  at  first  inured  by  estoppel  : 
but  that  when  the  remainder  came  to  the  conusor's  heir,  he 
should  claim  in  nature  of  a  descent,  and,  therefore,  should  be 
bound  by  the  estoppel  ;  and  then  the  estoppel  was  turned  into 
an  .interest,  and  the  conusee  had  then  an  estate  in  the  land.  In 
Treviban  v.  Lawrence,  2  Ld.  Raym.  1048;  6  Mod.  258,  Lord  Holt 
cites  39  Ass.  18,  Fol.  287,  where  it  was  said  by  Cavendish,  arguendo, 
that  if  a  man  brings  a  writ  of  error,  and  then  purchases  the  land,  he 
is  ousted  of  the  error  forever;  and  speaks  of  an  estoppel  as  creating 
an  interest  in  or  working  upon  the  estate  of  the  land,  and  as  run- 
ning with  the  land  to  whoever  takes  it.  In  Vick  v.  Edwards,  3  P. 
Wins.  371,  cited  by  Mr.  Preston,  Lord  Talbot  must  have  con- 
sidered a  fine  by  a  contingent  remainder-man  as  having  the  double 
operation  of  estopping  the  conusors  till  the  contingency  happened, 
and  then  of  passing  the  estate.  There  lands  were  devised  to  A. 
and  B.  and  the  survivor,  and  the  heirs  of  such  survivor,  in  trust  to 
sell.  Upon  a  reference  to  the  Master,  he  reported  that  they  could 
not  make  a  good  title,  because  the  fee  would  vest  in  neither  till  one 
died.  On  exceptions  to  the  Master's  report,  Lord  Talbot  held  that 
a  fine  by  the  trustees  would  pass  a  good  title  to  the  purchaser  by 
estoppel ;  for  though  the  fee  was  in  abeyance,  one  of  the.  two  trus- 
tees must  be  the  survivor,  and  entitled  to  the  future  interest ;  con- 
sequently, his  heirs,  claiming  under  him,  would  be  estopped  by  reason 
of  the  fine  by  the  ancestor,  from  saying  quod  paries  finis  nihil 
hahuerunt,  though  he  that  levied  the  fine  had  at  the  time  no  right 
or  title  to  the  contingent  fee.  On  the  following  day,  he  cited  the 
case  of  Weale  v.  Lower,  Pollexf.  54,  which  I  have  before  cited.  Now, 
whether  Lord  Talbot  was  right  in  treating  the  fee  as  being  in  abey- 
ance, and  the  limitation  to  the  survivor  and  his  heirs  as  a  contin- 
gent remainder,  or  not,  it  is  evident  he  did  so  consider  them  ;  and 
he  must  have  had  the  impression  that  the  fine  would  have  operated, 
not  by  estoppel  only,  but  by  way  of  passing  the  estate  to  the  pur- 
chaser, because,  unless  it  had  the  latter  operation  as  well  as  the 
former,  it  would  not  pass  a  good  title  to  the  purchaser. 


486  ACCRETION. 


No.  3.       Swan  v.  Western  Bank  of  Scotland. 


Mr.  Fearne,  in  his  work  on  Remainders,  c.  6,  §  5,  says,  "We  are 
to  remember,  however,  that  a  contingent  remainder  may,  before  it 
vests,  be  passed  by  fine  by  way  of  estoppel,  so  as  to  bind  the  inter- 
est which  shall  afterwards  accrue  by  the  contingency;"  and  after 
stating  the  facts  in  Weale  v.  Lower,  he  says,  "It  was  agreed  that 
the  contingent  remainder  descended  to  the  conusor's  heirs  ;  and 
though  the  fine  operated  at  first  by  conclusion  only,  and  passed 
no  interest,  yet  the  estoppel  bound  the  heir;  and  that,  upon  the 
contingency,  the  estate  by  estoppel  became  an  estate  in  interest, 
of  the  same  effect  as  if  the  contingency  had  happened  before  the 
fine  was  levied."' 

Upon  these  authorities,  we  are  of  opinion  that  the  fine  in  this 
case  had  a  double  operation,  —  that  it  bound  Mr.  and  Mrs.  Stephen- 
son by  estoppel  or  conclusion  so  long  as  the  contingency  continued  ; 
and  that  when  the  contingency  happened,  the  estate  which  devolved 
upon  Mrs.  Stephenson  fed  the  estoppel  ;  tiie  estate  created  by  the 
fine,  by  way  of  estoppel,  ceased  to  be  an  estate  by  estoppel  only, 
and  became  an  interest,  and  gave  Mr.  Chandless,  and  those  having 
a  right  under  him,  exactly  what  he  would  have  had  in  case  the 
contingency  had  happened  before  the  fine  was  levied. 

Judgment  for  the  plaintiff. 

Swan  v.  Western  Bank  of  Scotland. 

Court  of  Session  1866,  3rd  series  of  C.  of  S.  Rep.  Vol.  4,  p.  663. 

The  question  in  this  case,  which  was  in  effect  an  action  between 
vendor  and  purchaser  of  land,  was  whether  the  vendor  had  shown 
a  good  title  to  the  land. 

William  Dixon,  being  (subject  as  hereinafter  mentioned)  seized 
of  and  entitled  to  the  land  in  question  by  a  deed  of  trust-disposition, 
dated  29th  August,  1849,  conveyed  to  William  Johnston  the  whole 
property,  heritable  and  movable,  then  belonging  to  him;  and  by 
a  supplementary  deed,  dated  loth  September,  1851,  conveyed  to 
the  said  William  Johnston  certain  lands,  including  the  land  in 
question,  by  specific  description.  There  was  an  instrument  of 
seisin  taken  out  on  the  latter  conveyance  and  duly  registered, 
which  had  by  statute  the  same  effect  as  if  Dixon  had  given  seisin 
to  (or  infeft)  Johnston  on  the  land  itself.  Through  an  inter- 
mediate conveyance  to  one  Bunten,  Johnston's  title  became  vested 
in  the  vendors,  the  Western  Bank  of  Scotland. 


ACCRETION.  487 


No.  3  — Swan  v.  Western  Bank  of  Scotland. 


It  appeared,  however,  that  in  1847  Dixon  had  conveyed  the 
lands  in  question  by  an  exfacie  absolute  disposition  to  the  Com- 
mercial   Bank  of  Scotland;   and   this   disposition    had   1 n   duly 

followed  by  infeftinent.  In  1854  the  Commercial  Bank  recon- 
veyed  the  land  to  Dixon,  and  Dixon  was  duly  infeft,  pursuant 
to  that  reconveyance. 

The  purchasers  (Swans)  pleaded  that  by  Dixon's  conveyance  to 
the  Commercial  Bank,  and  the  infeftinent  of  the  Bank  thereon, 
Dixon  was  divested  of  all  right  in  the  land  in  question,  and  that 
the  subsequent  dispositions  of  1849  and  1851,  and  subsequent 
deeds  transmitting  the  title  to  the  Western  Bank  of  Scotland., 
were  nugatory. 

The  vendors  pleaded,  (1)  That  the  conveyance  to  the  Commercial 
Bank  having  been  really  a  mere  conveyance  in  security  was  only 
a  burden  on  Johnston's  title,  which  was  validly  discharged  by  the 
reconveyance  to  Dixon  and  his  infeftinent  thereon  ;  (2)  That,  even 
assuming  the  conveyance  to  the  Commercial  Bank  to  have  been 
absolute  and  irredeemable,  the  subsequent  reconveyance  to  Dixon 
accresced  to  Johnston's  title,  which  Dixon  was  bound  to  warrant 
absolutely. 

The  Lord  Ordinary  (or  Judge  of  first  instance),  Lord  Barcaple, 
found  the  vendors'  title  valid  and  effectual  to  enable  them  to  sell 
and  convey  the  lands,  but  found  neither  party  entitled  or  liable  to 
the  costs  of  the  action.  His  note  of  reasons  for  this  judgment  was 
as  follows :  — 

"  The  title  of  the  vendors,  the  Western  Bank  of  Scotland,  flows 
from  Dixon,  who  conveyed  inter  alia  the  land  in  question  to 
Johnston  in  trust  for  creditors.  Johnston  was  infeft,  and  sold 
and  disponed  the  land  to  one  Bunten,  who  was  also  infeft,  and  sold 
and  disponed  to  the  Western  Bank.  It  appears,  however,  that 
Dixon  had,  by  an  ex  facie  absolute  disposition,  conveyed  subjects 
of  great  extent,  including  the  land  in  question,  to  the  Commercial 
Bank,  who  were  infeft  before  the  date  of  the  trust-deed  granted 
by  Dixon  to  Johnston.  In  1854,  several  years  after  the  date  of 
the  trust-deed  to  Johnston  and  his  infeftment  upon  it,  the  Com- 
mercial Bank  reconveyed  the  land  in  question  to  Dixon,  and  he 
took  infeftment  on  the  reconveyance  of  that  year.  In  these  cir- 
cumstances the  purchasers  (Swans)  maintain  that  the  trust-deed 
in  favour  of  Johnston  having  been  granted  by  Dixon  when  he  had 
no    title  or  right  of   any  kind  to  the  lands,  the    trust-deed  and 


488  ACCRETION. 


No.  3.  —  Swan  v.  Western  Bank  of  Scotland. 


Johnston's  infeftment  upon  it  are  therefore  invalid,  and  incapable 
of  being  validated  by  the  accretion  of  the  right  subsequently 
acquired  by  Dixon  under  the  Commercial  Bank's  conveyance 
to  him. 

"  The  vendors  allege  that  the  right  of  the  Commercial  Bank, 
though  ex  facie  absolute,  was  truly  a  trust  for  security  of  such 
advances  as  they  should  make  to  Dixon.  But  the  object  of  the 
conveyance  to  the  Bank  does  not  appear,  either  on  the  face  of  that 
deed  or  of  the  reconveyance  to  Dixon. 

"  All  difficulty  might  be  got  over  by  Mr.  Dixon's  representative 
concurring  in  the  disposition  to  be  granted  to  the  purchasers.  But 
it  was  explained  at  the  debate  that  he  declines  to  take  that  step, 
as  tending  to  throw  doubt  upon  the  validity  of  Dixon's  trust- 
deed. 

"  The  plea  of  the  purchasers  raises  the  question  whether  the 
maxim  jus  superveniens  a  actor i  accrescit  successori  applies  where 
there  was  no  right  of  any  kind,  or  at  least  no  right  constituted 
by  writing,  in  the  person  of  the  author  when  he  granted  the  con- 
veyance. I  think  that,  in  the  existing  state  of  the  authorities,  the 
purchasers  were  entitled  to  treat  this  as  a  doubtful  point,  It  would 
have  been  more  satisfactory  if  it  could  have  been  tried  with  a  party 
having  an  interest  to  set  up  a  competing  title  ;  but  it  is  not  sug- 
gested that  such  an  interest  exists  anywhere,  and  this  proceeding 
between  the  purchasers  and  vendors  seems  to  be  the  only  mode  of 
trying  the  question. 

"  The  purchasers  refer  to  Bell's  Principles,  §  882,  and  to  the 
case  of  Miuiro  v.  Brodic,  4  July,  1881,  in  support  of  their  conten- 
tion that  accretion  does  not  take  place  where  there  was  no  right  in 
the  author  at  the  date  of  the  conveyance.  Mr.  Bell,  in  the  passage 
referred  to,  says :  '  If  the  granter  of  the  precept  (i.  c.,  the  warrant 
for  infeftment)  have  at  the  time  no  right  to  the  subject,  but 
acquires  a  right  by  subsequent  title,  it  may  be  doubted  whether 
accretion  will  take  place.'  In  the  case  of  Munro  there  was 
unquestionable  ground  for  refusing  effect  to  the  supervening  title, 
in   respect  of  a  mid-impediment.1     Lord  Ivory,  whose  judgment 

'  Mid-impediment  has  been  defined  as  required  confirmation  by  the  feudal  supe- 
anything  which  intervenes  between  two  rior.  A  conveyance  meantime  to  another 
events  so  as  to  prevent,  as  between  the  created  a  mid-impediment,  and  precluded 
two,  the  retrospective  operation  of  the  the  superior  from  making  a  valid  con- 
latter  event.  The  term  was  much  used  firmation  of  the  former's  right.  —  R.  C. 
in    Scotch    ia\v   at   a   period    when    titles 


ACCRETION.  48!) 


No.  3.  —  Swan  v.  Western  Bank  of  Scotland. 


was  adhered  to,  rested  it  upon  this  ground  ;  but  his  Lordship  in 
his  note  expressed  views  unfavourable  to  the  application  of  the 
doctrine  of  accretion,  where,  as  in  that  case,  the  author's  right, 
when  he  granted  the  conveyance,  depended  upon  a  mere  missive 
of  sale  (i.  c,  a  contract  not  having  the  solemnity  of  a  deed),  with- 
out a  disposition  or  other  inchoate  title  capable  of  being  feudally 
perfected.  The  only  report  of  the  judgment  of  the  court  of  review 
is  in  the  (Scottish)  Jurist  (xxvi.  541).  Lord  Fullerton,  with  whom 
the  Lord  President  concurred,  appears  to  have  rested  his  opinion 
entirely  upon  the  mid-impediment;  and  that  appears  to  have  been 
also  the  ground  of  Lord  Jeffrey's  opinion.  But  Lord  Mackenzie. 
while  he  also  concurred  on  that  ground  of  decision,  said:  'I  have 
never  been  in  the  habit  of  considering  that  a  jus  accrescendi  could 
supervene  on  the  grantor  completing  his  title  to  the  effect  of  vali- 
dating deeds  granted  by  him  while  his  title  depended  solely  on 
missives  of  sale.     1   must  say   I  think  this  very  doubtful.' 

"While  I  feel  the  great  weight  due  to  the  serious  doubt  expressed 
and  sanctioned  by  the  authority  of  Mr.  Bell,  Lord  Mackenzie,  and 
Lord  Ivory,  1  am  of  opinion  that  the  qualification  of  the  doctrine 
of  jus  sttperveniens  contended  for  is  not  consistent  with  the  nature 
and  grounds  of  the  doctrine  as  it  has  been  explained  and  under- 
stood in  the  law  of  Scotland.  I  can  discover  no  trace  of  such  a 
limitation,  or  of  any  principle  which  should  lead  to  it,  in  the 
Institutional  writers.  Stair,  iii.  2,  1,  &  2;  Bankton,  iii.  2,  16;  and 
Erskine,  ii.  7,  3,  &  4,  make  no  mention  of  the  important  qualifica- 
tion of  the  rule,  which  they  lay  down  in  general  terms.  Stair 
says :  '  Whatever  right  befalleth  to  the  author  after  his  disposition 
or  assignation,  it  accresceth  to  his  successor,  to  whom  he  had 
before  disponed,  as  if  it  had  been  in  his  person  when  he  disponed, 
and  as  if  it  had  been  expressly  disponed  by  him.'  Erskine,  adopt- 
ing in  great  measure  the  phraseology  of  Stair,  says  :  '  The  super- 
vening right  is  by  a  fiction  of  law  considered  to  have  been  in  the 
disponer  at  the  date  of  the  transmission,  and  at  that  time  made 
over  by  him  to  the  disponee.'  Stair  and  Erskine  here  speak  of 
a  supervenient  right,  and  not  of  the  mere  completion  of  a  pre- 
viously existing  inchoate  title ;  and  the  explanation  which  they 
give  of  the  doctrine  applies  directly  to  the  case  of  a  disponer 
only  acquiring  right  to  the  subject  after  he  had  granted  the 
disposition. 

"The  doctrine   has  no  doubt  been    most  frequently  called  into 


490  ACCRETION. 


No.  3.  —  Swan  v.  Western  Bank  of  Scotland. 


effect  in  cases  where  infeftment  had  been  taken  upon  a  disposition, 
the  grantor  of  which  had  only  a  personal  title  at  the  date  of 
granting,  or  where,  after  disponing,  he  had  acquired  some  sub- 
ordinate or  corroborative  right.  But  it  is  by  no  means  confined 
to  this  class  of  cases.  Indeed,  though  its  practical  application  is 
most  valuable  in  feudal  conveyancing,  the  rule  is  originally  derived 
from  the  civil  law.  It  is  remarkable  that  Dirleton  propounded  the 
question,  '  If  it  should  be  understood  of  the  right  only  of  mov- 
ables and  such  things  as  may  be  transmitted  without  infeftment, 
and  not  of  lands  and  others  which  cannot  hdbili  mode  be  conveyed, 
much  less  accresce,  without  infeftment.'  However  unfounded  the 
doubt  on  this  point,  it  shows  that  Dirleton  did  not  look  upon  this 
kind  of  accretion  as  a  rule  of  feudal  conveyancing. 

"  Looking  to  the  nature  of  the  rule,  I  think  that  the  restriction 
contended  for  would  be  an  unnecessary  subtlety,  preventing  its 
application  in  cases  where  it  is  most  required,  and  at  variance  with 
its  true  principle.  The  Institutional  writers  refer  to  warrandice, 
express  or  impliedly,  as  its  ground,  which  is  as  applicable  where 
the  granter  had  no  right  at  the  date  of  his  disposition  as  where, 
he  had  an  incomplete  one.  The  view  stated  by  Professor  Bell, 
'  that  law  may,  fictione,  supply  solemnities,  but  not  substantial 
right,'  seems  to  overlook  the  true  purpose  for  which  the  fiction  is 
introduced.  It  is  not  to  supply  either  solemnities  or  substantial 
right,  both  of  which  must  actually  exist,  but  to  carry  back  the 
supervening  solemnity  or  right  to  the  date  of  the  disposition. 

"  The  vendors  referred  to  the  case  of  Gla**for<l  v.  Scott  (1850, 
Court  of  Session,  2nd  series,  Vol.  12,  p.  893)  as  an  authority  in  their 
favour.  The  reference  is  to  the  4th  branch  of  the  case.  In  so  far 
as  I  can  discover  from  the  report,  it  would  appear  that  accretion 
must  have  been  held  to  have  taken  place  where  there  was  no 
right  in  the  person  of  the  granter  at  the  date  of  his  disposition. 
But  it  does  not  clearly  appear  whether  the  question  now  under  con- 
sideration was  then  in  the  view  of  the  Court,  and  the  judgment  can 
hardly  be  taken  as  a  decision  upon  the  point. 

"  On  these  grounds  I  am  of  opinion  that  this  objection  to  the 
title  is  not  well  founded." 

Against  this  judgment  of  Lord  Barcaple,  the  purchasers  appealed 
to  the  Inner  House  (1st  division  of  the  Court)  and  argued,  (1)  that 
a  purchaser  is  entitled  to  an  unquestionable  title ;  (2)  that  the 
maxim  jus  su/perveniem  auctori  accrescit  successors  does  not  apply 


ACCRETION.  4U1 


No.  3.  —  Swan  v.  Western  Bank  of  Scotland. 


where  there  was  no  right  of  any  kind  in  the  person  of  the  author 
when  lie  granted  the  conveyance. 

The  vendors  argued  that  accretion  takes  place  although  there 
was  no  right  whatever  in  the  person  of  the  author  at  the  date  of 
the  conveyance. 

The  following  judgments  were  delivered:  — 

Lord  President  (McNeill,  afterwards  Lord  (  !olonsay).  I  cannot 
say  that  I  have  so  much  doubt  on  this  point  as  Professor  Bell 
seems  to  have  had. 

The  position  of  the  case  seems  to  be  this,  that  in  1847  Dixon 
conveyed  these  subjects  to  the  Commercial  Bank,  that  in  1854  tin- 
Bank  reconveyed  them  to  Dixon,  and  that  in  the  interval,  Dixon 
had  executed  the  trust-deed  and  supplementary  trust-deed  in 
favour  of  Johnston.  The  question  then  is,  whether  the  convey- 
ance to  the  Bank  divested  Dixon  entirely,  and  whether  when  he 
got  the  conveyance  from  the  Bank  in  March,  1854,  it  accresced  to 
Johnston.  There  was  no  mid-impediment,  it  has  been  argued 
that  the  conveyance  by  Dixon  to  the  Bank  was  a  conveyance  in 
security  merely,  and  there  are  strong  grounds  for  so  holding ; 
but  I  would  hesitate  to  say  that  that  has  been  clearly  established, 
and  accordingly  I  rest  no  part  of  my  opinion  on  that  ground. 

I  am  of  opinion  that  the  right  acquired  by  Dixon  by  the  recon- 
veyance from  the  Bank  accresced  to  Johnston.  I  have  always 
been  under  the  impression  that  even  where  there  was  no  com- 
pleted right  in  the  disponer,  the  subsequent  title  acquired  by  him 
accresced  to  his  disponee.  I  think  that  is  the  fair  reading  of  our 
early  Institutional  writers,  who  treat  of  this  matter  broadly,  and, 
in  language  apt  for  comprehending  this  very  question.  But  then 
we  have  the  doubt  of  Mr.  Bell  and  Lord  Ivory  and  Lord  Mackenzie 
in  one  case,  though  in  the  case  of  Glassford  v.  Scuff  his  Lordship 
did  not  adhere  to  his  doubt.  Bell  died  in  the  faith  expressed  in 
his  doubt,  though  he  does  not  press  it  further  than  a  doubt;  but 
he  tells  us  that  Jamieson  was  of  another  opinion.  I  have  always 
been  accustomed  to  give  much  weight  to  the  opinion  of  Jamieson, 
who  was  a  sound  lawyer;  and  in  this  case  I  am  for  following 
the  opinion  of  Stair  and  Erskine  and  Jamieson. 

Lord  Curkiehill.  The  question  here  is,  whether  or  not  John- 
ston had  power,  on  the  1st  of  June,  1854,  to  convey  these  subjects 
to  Bunten.     If  he  had,  then  the  title  is  unexceptionable. 

Johnston's  title  had  been  acquired  by  him  by  the  trust-convey- 


492  ACCRETION. 


No.  3.  —  Swan  v.  Western  Bank  of  Scotland. 


ances  of  1849  and  1851  ;  and  on  these  dispositions  Johnston  is 
authorised  to  sell  the  land.  The  objection  taken  is,  that  Dixon, 
who  granted  these  dispositions,  and  the  power  of  sale  conferred  by 
them,  had,  in  1847,  divested  himself  of  these  subjects  in  favour  of 
the  Commercial  Bank.  It  is  said  that  that  conveyance,  though 
ex  facte  absolute,  was  in  reality  a  security,  and  perhaps  that  was 
the  case.  But  we  have  no  evidence  of  that  here  ;  and  I,  there- 
fore, assume  that  it  was  an  absolute  conveyance,  and  I  deal  with 
the  case  on  that  footing.  Was,  then,  the  power  given  by  Dixon 
to  Johnston  ineffectual  because  Dixon  had  been  divested  of  his 
real  right  in  favour  of  the  Commercial  Bank?  The  reply  to  this 
is,  that  before  Johnston  executed  the  conveyance  to  Bunten  — ■ 
namely,  in  March,  1K54 —  the  subjects  had  been  conveyed  to 
Dixon.  There  was  no  mid-impediment ;  and  I  have  no  doubt 
whatever  that  the  reconveyance  to  Dixon  in  March,  1 854,  accresced 
to  the  trust-conveyance  which  he  had  previously  granted,  and 
validated  the  power  of  sale  therein  contained.  T  concur  entirely  in 
the  views  expressed  by  your  Lordship  as  to  the  retrospective  effect 
of  such  a  conveyance  in  cases  where  there  is  no  mid-impediment. 
This  is  a  doctrine  stated  by  all  our  Institutional  writers  except 
Bell,  who  has  expressed  a  doubt  in  regard  to  it,  hut  has  stated  no 
authority  for  that  doubt.  It  is  an  elementary  principle  of  the  law 
of  Scotland. 

It  was  said,  in  the  course  of  the  argument,  that  the  doctrine  of 
accretion  was  borrowed  from  the  Roman  law,  and  was  inconsis- 
tent with  the  principles  of  feudal  law.  But  this  is  not  the  case. 
On  the  contrary,  I  find  it  operating  in  a  clear  and  effectual  man- 
ner in  our  feudal  conveyancing.  To  take  a  well-known  example: 
a  charter  of  confirmation  —  not  under  the  recent  statute,  but 
according  to  the  common  feudal  law  which  regulates  our  convey- 
ancing—  has  a  retrospective  effect,  operating  back  to  the  date  of 
the  former  entry,  to  the  effect  of  even  extinguishing  mid-superiori- 
ties which  had  been  constituted.  This  shows  that  the  doctrine  is 
not  repugnant  to  the  principles  of  feudal  law.  I  am,  therefore, 
clearly  of  opinion  that  the  conveyance  to  Dixon  in  March,  1854, 
accresced  to  Johnston's  right,  and  validated  the  power  of  sale 
given  to  him  by  the  trust  conveyances  of  1849  and  1851. 

Lord  Deas.  Taking  the  case  on  the  same  footing  as  your  Lord- 
ships do,  —  namely,  that  Dixon,  being  duly  vested  in  these  subjects, 
conveyed  them  to  the  Commercial  Bank  by  an  absolute  disposition, 


ACCRETION.  493 


No.  3.  —  Swan  v.  Western  Bank  of  Scotland. 


on  which  the  Commercial  Bank  was  infeft;  that  thereafter  he 
granted  the  deed  now  in  question  while  he  still  stood  denuded  of 
the  property;  and  that,  after  granting  that  deed,  he  re-acquired  the 
subjects  from  the  Commercial  Bank  —  the  question  is,  whether 
the  title  under  which  he  re-acquired  the  subjects  accresced  to  his 
disponee,  Johnston. 

That  is  an  important  question,  because  there  is  no  case,  unless  it 
be  the  case  of  Glassford  v.  Scott,  in  which  the  question  has  been 
decided  since  Professor  Bell  expressed  the  doubt  which  has  been 
referred  to.  Mr.  Bell's  doubt  was,  whether  there  was  room  for  ac- 
cretion, if  the  party  who  granted  the  deed  had,  at  the  time  of  grant- 
ing it,  no  right  whatever  to  the  subjects.  That  is  not  the  doubt 
which  was  expressed  by  Lord  Ivory,  or  by  the  late  Lord  Mackenzie. 
The  doubt  they  expressed  was,  whether,  supposing  the  granter  to 
have  had  a  right,  if  it  was  not  a  right  capable  of  being  feudalised, 
accretion  could  take  place,  —  whether,  for  example,  accretion  could 
take  place  if  the  granter  had  purchased  the  subjects,  but  his  pur- 
chase stood  merely  on  a  simple  contract  in  writing,  such  as  could 
not  warrant  or  be  followed  up  by  infeftment.  That  doubt  appears 
to  rest  on  a  different  ground  from  Professor  Bell's  doubt,  and,  with 
all  deference,  I  think  it  is  going  too  far  to  say  that  accretion  can 
never  take  place  where  the  title  of  the  disponer  is  one  which  can- 
not be  feudalised.  On  that  view  there  could  be  no  accretion,  al- 
though the  disponer  had  a  disposition,  unless  containing  authority 
for  taking  infeftment  properly  expressed  and  executed  with  all 
due  formality.  I  cannot  go  along  with  that  view  of  the  law.  I 
think,  amongst  other  objections  to  it,  that  it  would  lie  difficult  to 
reconcile  it  with  the  principle  involved  in  the  late  case  of  The  Earl 
of  Fife  v.  Duff,  as  decided  in  this  court  and  in  the  House  of  Lords 
(Court  of  Session,  2  Series,  p.  657  and  4  Macq.  469),  where  it  was 
found  that  the  original  deed,  although  it  contained  no  express 
authority  for  infeftment,  formed  the  statutory  entail.  It  would 
be  equally  difficult  to  reconcile  it  with  our  familiar  practice  of 
taking  a  disposition  from  an  heir  apparent  ]  and  infefting  the  pur- 
chaser thereon,  and  afterwards  making  up  the  heir's  title  which 
accresced  to  the  disponee. 

1  The  expression  here  means  an  heir  inquisitio  post    mortem,  which  survived  in 

who  is  actually  entitled  in  possession,  but  Scotland  until   a   recent   date),   or   their 

who  has  not  completed  his  title  with  the  statutory  equivalents, 
formalities  of  feudal  law   (including  the 


494  ACCRETION. 


No.  3.  —  Swan  v.  Western  Bank  of  Scotland. 


But  Professor  Bell's  doubt  was,  whether  there  could  be  accretion 
where  the  disponing  party  had,  at  the  time  of  disponing,  no  right 
of  any  kind.  He  expresses  no  more  than  a  doubt,  and  it  is  a  doubt 
of  a  doctrine  laid  down  both  by  Stair  and  Erskine, and  which  must 
have  been  frequently  acted  on  before  Professor  Bell's  doubt  was 
expressed.  The  reason  he  assigns  for  it,  "  that  law  may,  firfionc, 
supply  solemnities,  but  not  substantial  rights,"  does  not  appear  to 
me  satisfactory.  The  substantial  right  has,  exhypotlicsi,  come  to  be 
in  the  disponing  party,  and  the  fiction  which  holds  that  right  to 
have  been  acquired  [trior  to  its  being  exercised  is,  to  say  the  least 
of  it,  as  easily  admissible  as  the  fiction  which  holds  such  a  solem- 
nity as  infeftment  to  have  taken  place  before  it  actually  did  take 
place.  Solemnities,  of  all  things,  are  the  least  open  to  be  supplied 
by  fictions.  The  doctrine  of  accretion  is  not  less  equitable  and 
convenient  in  the  matter  of  substantial  right  than  in  the  matter  of 
solemnity.  A  purchaser  may  be  quite  aware  that  the  seller  who 
conveys  to  him  has  no  right  to  the  subjects,  but  that  he  means  to 
acquire  them,  or  expects  to  succeed  to  them  ;  and  if  the  doctrine  of 
accretion  did  not  apply  to  such  a  case,  the  seller  might,  so  soon  as 
he  obtained  a  title,  dispone  to  a  third  party,  who,  if  first  infeft  and  act- 
ing ho  ad  fide,  would  cut  out  the  first  purchaser.  These  are  just  the 
sort  of  cases  in  which  the  doctrine  of  accretion  is  most  necessary. 

The  case  of  Keith  (1792,  M.  Diet.  2933)  is  not  against,  but 
rather  confirmatory  of,  the  doctrine  of  Stair  and  Erskine.  The 
question  there  was  not  as  to  the  accretion  of  a  title  obtained  by 
the  granter  of  the  deed,  but  of  a  title  made  up  in  the  person  of 
his  heir,  who  had  entered  cum  he'fieficio  inventarii.  That  title  was 
held  not  to  accresce,  for  the  reasons  assigned  in  the  report.  But 
it  was  conceded  in  argument,  that  where  "  a  person,  who  is  not  m 
tituh)  at  the  time,  gives  infeftment  to  another,  and  is  himself  there- 
after vested  in  the  feudal  right,  the  jus  superveniens  does  accresce. 
All  the  necessary  solemnities  here  concur,  although  there  has  been 
an  irregularity  in  point  of  time.  But  when  the  infeftment  Hows 
from  a  person  who  at  no  future  period  acquires  the  feudal  right, 
there  is  an  essential  defect  in  point  of  solemnity  which  can  never 
be  supplied."  Now,  this,  it  is  true,  was  mere  concession  in  argu- 
ment ;  but  it  was  concession  by  the  first  Lord  Meadowbank  and 
Matthew  Ross,  who  were  counsel  for  Mr.  Keith,  and  amongst  the 
chief  lawyers  of  their  time. 

No  doubt  could  be  entitled  to  more  respect  than  a  doubt  expressed 


ACCRETION.  495 


Nos.  2.  3.  —  Doe  d.  Christmas  v.  Oliver,  &c.  —  Notes. 


by  the  late  Professor  Bell  ;  but  I  agree  with  your  Lordship  that 
the  opinion  (which  Mr.  Bell  has  recorded)  of  the  late  Mr.  Robert 
Jamieson  is  not  less  weighty.  I  do  not  think  that  the  doubt  has 
pervaded  the  profession  generally.     1  did  not  myself  entertain  it 

when  at  the  bar,  and  I  concur  in  the  able  note,  as  well  as  in  the 
judgment  of  the  Lord  Ordinary. 

Lord  ARDMILLAN.  I  concur.  In  my  opinion  the  doctrine  or 
rule  of  accretion  is  not  a  principle  of  feudal  law,  but  is  rather  an 
equitable  remedy  for,  a  wrong,  —  a  remedy  which,  however,  is  not 
repugnant  to  feudal  law,  and  tends  to  support  feudal  title.  I  do 
not  think  that  the  maxim/ws  superveniens  auctori  accrescit  suecessori 
is  a  brocard  of  feudal  law.  When  a  conveyance  has  been  granted 
by  a  party  with  an  imperfect  right,  a  wrong  is  done  to  the  dis- 
ponee  ;  and  if  the  granter  subsequently  acquires  a  muniment  of 
the  right  he  has  conveyed,  law  will  not  allow  him  to  say  that  he 
has  acquired  it  for  his  own  benefit  to  the  prejudice  of  his  dis- 
ponee,  and  therefore  it  accresces  to  his  disponee. 

This  is  the  way  in  which  the  law  is  put  by  Lord  Stair.  The 
rule  of  equity  that  a  muniment  of  a  right  devolving  on  the  granter 
must  accresce  to  the  title  of  the  granter,  applies  even  more  strongly 
when  the  granter  has  no  right  than  when  he  has  only  an  inchoate 
right,  because  the  wrong  to  the  grantee  is  all  the  greater.  The 
authority  of  Stair  and  Erskine  is  clear;  and  I  think  the  decision 
in  the  case  of  Glassford  v.  Scott  proceeds  on  the  recognition  of  the 
principle  that  accretion  applies  in  a  case  such  as  the  present,  and 
the  decision  of  that  case  appears  to  me  inconsistent  with  the  doubt 
expressed  by  Professor  Bell,  and  more  recently  by  Lord  Ivory. 

The  Court  accordingly  pronounced  judgment  affirming  the  judg- 
ment of  Lord  Barcaple. 

ENGLISH   NOTES. 

The  odd  expression  that  the  estate  or  interest  "'feeds  the  estoppel" 
appears  to  have  been  borrowed  from  the  opinion  of  the  Lord  Chief  Jus- 
tice Holt  in  Wealer.  Lower  (1672),  Pollexfen,  54,  66,  and  p.  485 supra. 
But  here  the  expression  is  explained  to  mean  that  the  estate  or  right 
which  at  first  operated  by  way  of  estoppel  became  an  estate  in  interest. 
And  this  agrees  with  the  expression  used  in  Rawlins'  C"se(lof>T)  as 
cited  p.  484,  supra.  The  Scotch  case  of  Swan  (No.  .">.  487,  supra)  lias 
been  selected  to  show  that  the  rule  depends  on  no  technical  or  peculiar 
principle  of  English  law,  but  has  been  established,  and  is  capable  of 
1»eing  maintained,  on  a  broad,  aid  intelligible  ground,  in  am  system 
of  civilised  jurisprudence. 


496  ACCRETION. 


Nos.  2,  3.  —  Doe  d.  Christmas  v.  Oliver,  &oc.  —  Notes. 


The  rule  was  applied  by  the  Court  of  Exchequer  in  1846  in  the  case  of 
Sturgeon  v.  Wing/field,  15  M.  &  W.  224;  15  L.  J.  Exch.  212.  The 
action  was  by  a  tenant  farmer  against  the  landlord  for  bread)  of  a  covenant 
to  keep  down  rabbits;  and  the  question  turned  upon  whether  the  estates 
in  possession  and  reversion  under  the  lease  were  vested  in  the  respective 
parties.  The  lease  in  question  was  by  deed  dated  in  1828;  and  therein 
H.  had  demised  the  farm  by  way  of  lease  to  plaintiff,  and  by  same  deed 
entered  into  the  covenant  in  question.  What  interest  H.  had  in  the 
farm  at  the  time  does  not  appear  by  the  report;  but  it  is  at  least  clear 
that  he  had  no  interest  of  which  a  court  of  law  could  take  cognisance. 
At  the  time  of  the  lease  the  farm  belonged  to  a  certain  corporation,  sub- 
ject to  a  term  of  100  years,  with  perpetual  right  of  renewal  which  had 
been  granted  by  the  corporation,  in  1742.  In  1836  this  long  term  was 
surrendered  to  the  corporation,  and  a  new  term  of  100  years  was  granted 
by  them  toll.  Shortly  after  this,  H.  conveyed  all  his  estate  and  inter- 
est in  the  farm  to  the  defendant.  It  was  held  that  the  reversion  which 
H.  had  by  way  of  estoppel,  on  making  the  lease  of  1828,  was  fed  (as  it  is 
expressed)  by  the  new  demise  from  the  corporation,  and  so  became  an 
estate  in  reversion,  which  passed  by  his  conveyance  to  the  defendant. 
This  might  have  been  expressed  in  the  language  of  the  Scotch  case  as 
follows:  On  the  acquisition  by  H.  of  the  legal  right  to  the  term  of 
400  years,  that  right  accresced  in  favour  of  both  parties  under  the  lease 
of  1828,  and  validated  that  lease,  so  that  the  right  to  the  term  under  the 
lease  became  vested  in  the  plaintiff,  and  the  right  to  the  reversion  in  H. 
And  therefore  on  the  assignment  by  H.  of  his  estate  and  interest  to 
the  defendant,  the  term  and  reversion  under  the  lease  of  1828  became 
vested  as  estates  in  possession  and  reversion  in  the  plaintiff  and  defen- 
dant, respectively. 

AMERICAN    NOTES. 

Where  one  sells  and  conveys  lands  to  which  lie  has  no  title,  but  afterward 
acquires  title,  his  heirs  will  be  estopped  to  deny  title  in  the  grantee.  Mc- 
Williams  v.  Nisley,  2  Sergeant  &  Rawle  (Penn.),  507;  7  Am.  Dec.  654; 
McPherson  v.  Cunliff,  11  Sergeant  &  Kawle  (Penn.),  422;  14  Am.  Dec.  642; 
Ranch  v.  Derh,  1 16  Penn.  St.  157  ;  2  Am.  St.  Rep.  599  :  and  so  where  imperfect 
title  was  afterward  rendered  indefeasable,  Knowles  v.  Kenned//,  82  Penn.  St.  445. 

A  sale  or  mortgage  of  land  with  warranty  operates  to  convey  such  title  as 
the  grantor  may  afterward  acquire.  Williams  v.  Gray,  3  Greenleaf  (Maine), 
207  ;  14  Am.  Dec.  234,  citing  Jackson  v.  Bush,  10  Johnson  (New  York),  223: 
Jenkins  v.  Collard,  145  United  States,  546;  to  the  same  effect,  Village  of  Man- 
hato  v.  Willard,  13  Minnesota,  1  ;  97  Am.  Dec.  208;  McCusker  v.  McEvey,  9 
Rhode  Island,  528;  11  Am.  Rep.  295;  Doe  v.  Dowdall,  3  Houston  (Delaware). 
3(39  ;  1 1  Am.  Rep.  757,  citing  Doe  v.  Oliver.  5  M.  &  R.  202  ;  and  so,  although  there 
was  no  warranty,  if  there  was  in  the  deed  any  averment  or  implication  that  the 
grantor  had  title  to  the  premises;  Reynolds  v.  Cook,  83  Virginia,  817  ;  5  Am. 
St.  Rep.  317;    Van  Rensselaer  v.   Kearney,  11   Howard  (IT.  S.  Sup.  Ct),  297: 


ACCIIETION.  497 


Nos.  2,  3.  —  Doe  d.  Christinas  v.  Oliver,  &/C.  —  Notes. 


Buchelder  v.  Lor,!//.  69  Maine.  33 :  Teffl.  v.  Munson,  57  New  York,  97;  Bybee 
v.  Hageman,  66  Illinois,  519 ;  Magruder  v.  Esmay,  35  Ohio  St.  l'l'I  ;  Nixon  v. 
Carco,  28  Mississippi,  111;  C7aivfc  v.  Baker,  11  California,  612;  76  Am.  Dec. 
449;  Lindsay  v.  Freeman,  83  Texas.  25!).  IJut  there  is  no  estoppel  without 
covenant  of  title  of  some  sort;  Sparrow  v.  Kingman,  1  New  York, 242  ;  Julian 
v.  Boston,  «Sr.  A'.  Co.  128  Massachusetts,  555. 

But  if  the' deed  is  of  the  grantor's  "  right,  title,  and  interest,"  and  recites 
the  title  then  possessed  by  him.  or  contains  no  recital  of  the  character  of  that 
title,  it  will  not  convey  an  after-acquired  title  ;  Hanrich  v.  Patrick,  119  United 
States,  156. 

Mr.  Bigelow  (Estoppel.  348  [4])  discusses  with  great  learning  the  question 
whether  "the  after-acquired  estate  actually  passes  to  the  grantee  as  soon  as  the 
grantor  acquires  it,  or  is  the  grantor  only  precluded  from  setting  it  up  ?  "  The 
eases  cited  by  him  at  all  events  sustain  the  proposition  that  the  grantee 
acquires  the  subsequent  title  by  virtue  of  the  grant. 

This  doctrine  is  also  supported  by  the  following  cases  :  Blakeslee  v.  Mobile 
Im.  Co.,  hi  Alabama,  205;  Watkins  v.  Wassell,  15  Arkansas.  73;  Klumpke  v. 
Baker,  68  California,  559  ;  O'Bannon  v.  Pari  mow,  24  Georgia,  189  :  Wadhams  v. 
Strati,  109  Illinois,  40;  Handle  v.  Lower,98  Indiana.  255;  Thomas  x.  Stickle,  32 
Iowa,  72;  Dickerson  v.  Talbol,  11  B.  Monroe  (Kentucky),  60 ;  .W/A  v.  117/- 
frams,  44  Michigan,  240 :  A7w/  v.  /*o##,  60  Maine,  479  ;  Farnum  v.  Peterson,  111 
Massachusetts,  148;  Hooper  v.  Henry,  31  Minnesota,  264  ;  Mitchell  v.  Woodson, 
37  Mississippi,  578;  Hayes  v.  Tabor,  41  Xew  Hampshire,  521;  SmiV/i  v.  Z>? 
Rr.ssy,  29  New  Jersey  Equity,  407 ;  Mickies  v.  Dillaye,  15  Hun  (Xew  York 
.Supreme  Ct.),  290;  Zk//  v.  Adams,  81  North  Carolina,  118;  Hart  v.  Gregg,  32 
Olio  St.  502;  117/soh  v.  McEwan,  7  Oregon,  87;  Bade//  v.  Hoppin,  12  Rhode 
Island,  560;  Gaffney  v.  Peeler,  21  South  Carolina,  55;  Robinson  v.  Douthit,  64 
Texas,  101  ;  CW  CVee&  J/.  Co.  v.  fto.ss,  12  Lea  (Tennessee),  1  ;  A7/%  v.  67?w>- 
o/v/,  51  Vermont,  436;  Haines  v.  ICa/to-.  77  Virginia,  92;  JI7^ern  4/.  Co.  v. 
Peytonia  C.  C.  Co.,  8  West  Virginia,  406  ;  JU/7.s»er  v.  Zaun.  39  Wisconsin, 
188;  7Yms/  ^'  Loan  Co.  v.  Covert,  32  Up.  Can.  (^.  15.  222;  Boulter  v.  Hamilton, 
15  Up.  Can.  C.  P.  125;  Zmne  v.  Irvine,  9  Wallace  ( U.  S.  Sup.  ('(.).  017. 

A  mere  quitclaim  deed  works  no  estoppel  as  to  an  after-acquired  estate. 
Tillotson  v.  Kennedy,  5  Alabama,  413;  Quvey  v.  Baker,  37  California.  465; 
/Jar/  v.  Dar/,  7  Connecticut,  256;  Bennett  v.  Waller,  23  Illinois.  182  ;  Locke  v. 
White,  89  Indiana,  492;  Scojfins  v.  Grandstaff,  12  Kansas,  407  ;  /fo//o«  v.  Bohon, 
78  Kentucky,  408;  Haw  v.  Ham.  14  Maine,  351  ;  W^eed  Sewing  Machine  Co.  v. 
Emerson,  115  Massachusetts,  554;  Brown  v.  Phillips,  40  Michigan,  264;  A7>h- 
?«(j/  v.  Benna,  70  Missouri,  52;  Harden  v.  Cuttins,  8  Nevada,  49;  Bell  \.  Twi- 
light, 6  Foster  (Xew  Hampshire),  401  ;  .S7«/M  v.  /)<?  Russy,  29  Xew  Jersey 
Equity,  407;  Sparrow  v.  Kingman,  1  New  York,  242;  Jackson  v.  Af'/te//,  56  New 
York,  108;  //art  v.  Gregg,  32  Ohio  State,  502;  Burston  v.  Jackson,  9  Oregon, 
275;  Doswell  v.  Buchanan,  3  Leigh  (Virginia),  :>0.~> :  A>/>/  v.  JUatom,  22  West 
Virginia,  561. 

But  if  the  grantor  in  a  quitclaim  deed  had  the  equitable  title,  and  was  en- 
titled to,  and  subsequently  got,  the  legal  title,  it  inures  to  the  grantee.      Welch 
v.  Dutton,  79  Illinois,  465. 
vol.  i.  —  32 


498  ACCUMULATION'. 


No.  1.  —  Thelluson  v.  Woodford.  —  Kule. 


ACCUMULATION. 


No.  1.  —  THELLUSSON   v.   WOODFORD. 

WOODFORD    v,   THELLUSSON. 

(chancery,  1798.  n.  of  lords,  1805.) 

RULE. 

A  trust  under  a  will  to  accumulate  the  income  of  prop- 
erty until  the  death  of  the  survivor  of  a  class  of  persons 
named  or  described,  to  be  born  (or  to  be  en  ventre  sa  mere) 
in  the  lifetime  of  the  testator,  is  good.  (This  was  the 
English  law  as  unaffected  by  the  Act  passed  in  conse- 
quence of  this  decision,  commonly  called  the  Thelluson 
Act  39  &  40  Vict.  c.  98.) 

Thellusson  v.  Woodford. 
Woodford  v.  Thellusson. 

4  Yes.  227;  11  Yes.  112.     Also  in  8  Kevised  Reports,  p.  104. 

The  part  of  the  will  out  of  which  the  question  in  these  causes 
arose  was  (as  stated  by  Mr.  Justice  Lawrence  in  his  judgment, 
4  Ves.  308)  shortly  this  :  — 

Tt  is  a  devise  and  bequest  by  Mr.  Thellusson  to  his  trustees  and 
executors  of  his  real  estate  and  the  residuum  of  his  personal  estate 
upon  tiust  to  lay  out  the  personal  estate,  and  the  accumulated 
profits  which  may  arise  from  his  original  and  the  after-purchased 
estates,  during  the  lives  of  his  three  sons  and  such  of  their  issue 
as  shall  be  living  at  the  time  of  his  death  or  born  in  due  time 
afterwards,  in  the  purchase  of  real  estates,  and  on  the  death  of  the 
survivor  of  the  several  persons,  during  whose  lives  the  accumulation 
is  directed  to  go  on,  to  divide  the  devised  and  purchased  estates 
into  three  parts,  and  to  convey  them  respectively  in  tail  male  to 
the  eldest   male  lineal  descendant  of  his  three  sons,  with    cross- 


ACCUMULATION.  499 


No.  1.       Thellusson  v.  Woodford. 


remainders;  and  if  there  shall  be  but  one  son,  then  to  him  in  tail 
male;  and  in  case  there  should  not  be  any  such  male  lineal  descen- 
dant, then  upon  trust  to  sell  the  same,  and  pay  the  money  arising 
from  thence  to  his  Majesty  for  the  benefit  of  the  Sinking  Fund. 

The  Lord  Chancellor  (Lord  Loughboroh:h)  having  in  accor 
dance  with  the  judgment  of  the  Judges,  the  Master  of  the  Rolls 
Subsequently  Lord  ALVANLEY)  and  the  Judges  BuLLEB  and 
Lawrence,  made  his  decree  to  the  effect  that  the  limitations 
and  directions  contained  in  the  will  were  good,  the  cause  came  on 
-appeal  before  the  House  of  Lords,  and  was  argued  on  several  days 
.at  the  bar  of  the  House;  and  after  the  argument  the  following 
questions  (relating  to  the  question  of  the  devolution  of  the  real 
estate  merely)  were  proposed  to  the  Judges  on  the  motion  of  the 
Lord  Chancellor  (Lord  Eldon)  :  — 

1st.  A  testator  by  his  will,  being  seized  in  fee  of  the  real  estate 
therein  mentioned,  made  the  following  devise :  "  I  give  and  devise 
fill  my  manors,  messuages,  tenements,  and  hereditaments  at  Brods- 
worth,  in  the  county  of  York,  after  the  death  of  my  sons  Peter 
Isaac  Thellusson,  George  Woodford  Thellusson,  and  Charles  Thel- 
lusson,  and  of  my  grandson  John  Thellusson,  son  of  my  son  Peter 
Isaac  Thellusson,  and  of  such  other  sons  as  my  said  son  Peter 
Isaac  Thellusson  may  have,  and  of  such  sons  as  my  said  sons 
"George  Woodford  Thellusson  and  Charles  Thellusson  may  have, 
and  of  such  issue  as  such  sons  may  have  as  shall  be  living  at  the 
time  of  my  decease  or  born  in  due  time  afterwards,  and  after  the 
•-deaths  of  the  survivors  and  survivor  of  the  several  persons  afore- 
said to  such  person  as  at  the  time  of  the  death  of  the  survivor  of  the 
said  several  persons  shall  then  lie  the  eldest  male  lineal  descendant 
of  mj-  son  Peter  Isaac  Thellusson.  and  his  heirs  forever."  At  the 
time  of  the  testator's  death  there  were  seven  persons  actually 
horn,  answering  the  description  mentioned  in  the  testator's  will  ; 
and  there  were  two  en  centre  sec  mere,  answering  the  description,— 
if  children  en  ventre  sa  mere  do  answer  that  description.  All  the 
said  several  persons  so  described  in  the  testator's  will  being  dead, 
and  at  the  death  of  the  survivor  of  such  several  persons  there  being 
living  one  male  lineal  descendant  of  the  testator's  son  Peter  Isaac 
Thellusson,  and  one  only,  is  such  person  entitled  by  law,  under  the 
legal  effect  of  the  devise  above  stated,  and  the  legal  construction 
of  the  several  words  in  which  the  same  is  expressed,  to  the  said 
manors,  messuages,  tenements,  and  hereditaments  at  Brodsworth  ? 


5  JO  ACCUMULATION. 


No.  1.  —  Thellussan  v.  Woodford. 


2nd.  If  at  the  death  of  the  survivor  of  such  several  persons,  as 
aforesaid,  such  only  male  lineal  descendant  was  not  actually  born. 
but  was  en  ventre  sa  mere,  would  such  lineal  descendant,  when 
actually  born,  be 'so  entitled  ? 

The  unanimous  opinion  of  the  Judges  was  pronounced  by  the 
Lord  Chief  Baron  Macdonald.  The  other  Judges  present  were 
Lords  Ellknborough,  Grose,  Le  Blanc,  Heath,  Booke,  Chambre  ; 
Barons  Thompson  and  Graham.  Since  the  argument  Lord  Alvanlky 
had  died,  and  Baron  Hotham  resigned,  —  the  former  being  sue- 
ceeded  by  Sir  James  Mansfield,  the  latter  by  Sir  T.  M.  Sutton. 

Sir  A.  Macdonald,  Chief  Baron.  The  first  objection  to  the  will 
is,  that  the  testator  has  exceeded  that  portion  of  time  within  which 
tiie  contingency  must  happen  upon  which  an  executory  devise  is 
permitted  to  be  limited  by  the  rules  of  law,  for  three  reasons  : 
first,  because  so  great  a  number  of  lives  cannot  be  taken,  as  in  the 
present  instance,  to  protract  the  time  during  which  the  vesting 
is  suspended,  and  consequently  the  power  of  alienation  is  sus- 
pended ;  secondly,  that  the  testator  has  added  to  the  lives  of  per- 
sons who  should  be  born  at  the  time  of  his  death  the  lives  of 
persons  who  might  not  be  born  ;  thirdly,  that  after  enumerating 
different  classes  of  lives  during  the  continuance  of  which  the 
vesting  is  suspended,  the  testator  has  concluded  with  these  restric- 
tive words,  "  as  shall  be  living  at  the  time  of  my  decease  or  born 
in  due  time  afterwards  ; "  and  that,  as  these  words  appertain  only 
to  the  last  class  in  the  enumeration,  the  words  which  are  used  in 
the  preceding  classes  being  unrestricted,  they  will  extend  to 
grandchildren  and  great-grandchildren  and  their  issue,  and  so 
make  this  executory  devise  void  in  its  creation,  as  being  too 
remote.  With  respect  to  the  first  ground,  —  viz.,  the  number  of 
lives  taken,  which  in  the  present  instance  is  nine,  —  I  apprehend 
that  no  case  or  dictum  has  drawn  any  line  as  to  this  point,  which 
a  testator  is  forbidden  to  pass.  On  the  contrary,  in  the  cases  in 
which  this  subject  has  been  considered  by  the  ablest  Judges,  they 
have  for  a  great  length  of  time  expressed  themselves  as  to  the 
number  of  lives,  not  merely  without  any  qualification  or  circum- 
scription, but  have  treated  the  number  of  co-existing  lives  as 
matter  of  no  moment ;  the  ground  of  that  opinion  being  that  no 
public  inconvenience  can  arise  from  a  suspension  of  the  vesting, 
and  thereby  placing  land  out  of  circulation  during  any  one  life; 


ACCUMULATION.  501 


No.  1.  —  Thellusson  v.  Woodford. 


and  that  in  fact  the  life  of  the  survivor  of  many  persons  named 
or  described  is  but  the  life  uf  some  one.  This  was  held  without 
dissent  by  Twisden  in  Love  v.  Wyndham,  1  Mod.  50,  twenty  years 
before  the  determination  of  the  Duke  of  Norfolk's  Case,  3  Ch.  ('a.  1, 
2  Ch.  Rep.  229,  2  Freem.  72;  who  says,  that  the  devise  of  a  farm 
may  be  for  twenty  lives,  one  after  another,  if  all  be  in  existence  at 
once.  By  this  expression  he  must  be  understood  to  mean  any  num- 
ber of  lives,  the  extinction  of  which  could  be  proved  without  diffi- 
■cuJty.  When  this  subject  of  executory  trusts  came  to  lie  examined 
by  the  great  powers  of  Lord  Nottingham,  as  to  the  time  within 
which  the  contingency  must  happen,  he  thus  expresses  himself : 
"  If  a  term  be  devised,  or  the  trust  of  a  term  limited,  to  one  for  life, 
with  twenty  remainders  for  life  successively,  and  all  the  persons 
are  in  existence  and  alive  at  the  time  of  the  limitation  of  their 
estates,  these,  though  they  look  like  a  possibility  upon  a  possibility, 
.are  all  good,  because  they  produce  no  inconvenience;  they  wear 
out  in  a  little  time."  With  an  easy  interpretation  we  find  from 
Lord  Nottingham  what  that  tendency  to  a  perpetuity  is  which  the 
policy  of  the  law  has  considered  as  a  public  inconvenience;  namely, 
where  an  executory  devise  would  have  the  effect  of  making  lands 
unalienable  beyond  the  time  which  is  allowed  in  legal  limitations, 
--that  is,  beyond  the  time  at  which  one  in  remainder  would  attain 
his  age  of  twenty-one,  if  he  were  not  born  when  the  limitations 
Avere  executed.  When  he1  declares  that  he  will  stop  where  he 
finds  an  inconvenience,  he  cannot,  consistently  with  sound  construc- 
tion of  the  context,  be  understood  to  mean  where  Judges  arbitra- 
rily imagine  they  perceive  an  inconvenience  ;  for  he  has  himself 
stated  where  inconvenience  begins,  —  namely,  by  an  attempt  to 
suspend  the  vesting  longer  than  can  be  done  by  legal  limitation. 
I  understand  him  to  mean  that  wherever  courts  perceive  that  such 
would  be  the  effect,  whatever  may  be  the  mode  attempted,  that 
effect  must  be  prevented;  and  he  gives  the  same,  but  no  greater, 
latitude  to  executory  devises  and  executory  trusts;  as  to  estates 
tail.  This  has  been  ever  since  adopted.  In  Scatterwood  v.  Edge, 
1  Salk.  229,  the  court  held  that  an  executory  estate,  to  arise 
within  the  compass  of  a  reasonable  time,  is  good,  —  as  twenty  or 
thirty  years.  So  is  the  compass  of  a  life  or  lives;  for,  let  the  lives 
be  never  so  many,  there  must  be  a  survivor;  and  so  it  is  but  the 
length  of  that  life.  In  Humberston  v.  Humberston,  1  P.  Wins. 
o32,   where   an   attempt    was    made    to    create    a    vast    number    of 


502  ACCUMULATION. 


No.  1.  —  Thellusson  v.  Woodford. 


estates  for  life  in  succession,  as  well  to  persons  unborn  as  to  per- 
sons in  existence,  Lord  Cowper  restrained  that  devise  within  the 
limits  assigned  to  common-law  conveyances,  by  giving  estates  for 
life  to  all  those  who  were  living  (at  the  death  of  the  testator),  and 
estates  tail  to  those  who  were  unborn,  considering  all  the  co- 
existing lives  (a  vast  many  in  number)  as  amounting  in  the  end 
to  no  more  than  one  life.  His  Lordship  was  in  the  situation 
alluded  to  by  Lord  Nottingham,  where  a  visible  inconvenience 
appeared.  Tim  bounds  prescribed  to  limitations  in  common-law 
conveyances  were  exceeded  ;  the  excess  was  cut  off,  and  the  devise 
confined  within  those  limits.  Lord  Hardwicke  repeats  the  same 
doctrine  in  Sheffield  v.  Lord  Orrery,  3  Atk.  282,  using  the  words 
"  life  or  lives  "  without  any  restriction  as  to  number.  Many  other 
cases  might  be  cited  to  the  like  effect  ;  but  1  shall  only  add  what 
is  laid  down  in  two  very  modern  eases.  In  Gurnall  v.  Wood, 
Willes,  211,  Lord  Chief  Justice  Willes  speaks  of  a  life  or  lives 
without  any  qualification  ;  and  Lord  Thurlow,  in  Robinson  v. 
Hardcastle,  2  Bro.  (J.  C.  30,  says  that  a  man  may  appoint  100 
or  1000  trustees,  and  that  the  survivor  of  them  shall  appoint  a 
life  estate.  It  appears,  then,  that  the  co-existing  lives,  at  the 
expiration  of  which  the  contingency  must  happen,  are  not  confined 
to  any  definite  number.  But  it  is  asked,  shall  lands  be  rendered 
unalienable  during  the.  lives  of  all  the  individuals  who  compose 
very  large  societies  or  bodies  of  men,  orSvhere  other  very  extensive 
descriptions  are  made  use  of?  It  may  be  answered  that,  when  such 
eases  occur,  they  will,  according  to  their  respective  circumstances,. 
be  put  to  the  usual  test,  whether  they  will  or  will  not  tend  to  a 
perpetuity,  by  rendering  it  almost  if  not  quite  impracticable  to 
ascertain  the  extinction  of  the  lives  described,  and  will  be  sup- 
ported or  avoided  accordingly.  But  it  is  contended  that  in  these 
and  other  eases  the  persons  during  whose  lives  the  suspension  was 
to  continue,  were  persons  immediately  connected  with  or  immedi- 
ately leading  to  the  person  in  whom  the  property  was  first  to  vest, 
when  the  suspension  should  be  at  an  end.  I  am  unable  to  find 
any  authority  for  considering  this  as  a  sine  oint  hod  in  the  creation 
of  a  good  executory  trust.  It  is  true  that  this  will  almost  always 
be  the  case  and  mode  of  disposing  of  property,  introduced  and 
encouraged  up  to  a  certain  extent,  for  the  convenience  of  families  ; 
in  almost  all  instances  looking  at  the  existing  members  of  the 
familv  of   the    testator  and   its  connections.      But   when   the   true 


ACCUMULATION.  503 


No.  1.  —  Thellusson  v.  Woodford. 


reason  for  circumscribing  the  period  during  which  alienation  may 
be  suspended  is  adverted  to,  there  seems  to  be  no  ground  or  prin- 
ciple that  renders  such  an  ingredient  necessary.  The  principle 
is  the  avoiding  of  a  public  evil  by  placing  property  for  too  great 
a  length  of  time  out  of  commerce.  The  length  of  time  will  not 
be  greater  or  less,  whether  the  lives  taken  have  any  interest, 
vested  or  contingent,  or  have  not ;  nor  whether  the  lives  are  those 
of  persons  immediately  connected  with  or  immediately  leading  to 
that  person  in  whom  the  property  is  first  to  vest,  —  terms  to  which 
it  is  difficult  to  annex  any  precise  meaning.  The  policy  of  the 
law,  which,  I  apprehend,  looks  merely  to  duration  of  time,  can 
in  no  way  be  affected  by  those  circumstances.  This  could  not 
be  the  opinion  of  Lord  Thurlow  in  Robinson  v.  ffardcastle ;  nor 
is  any  such  opinion  to  lie  found  in  any  case  or  book  upon  this 
subject.  The  result  of  all  the  cases  upon  this  point  is  thus 
summed  up  by  Lord  Chief  Justice  Willes,  Willes,  215,  with  his 
usual  accuracy  and  perspicuity  :  — 

"Executory  devises  have  not  been  considered  as  mere  possibili- 
ties, but  as  certain  interests  and  estates  ;  and  have  been  resembled 
to  contingent  remainders  in  all  other  reapects,—  only  they  have 
been  put  under  some  restraints,  to  prevent  perpetuities.  As  at 
first  it  was  held  that  the  contingency  must  happen  within  the  com- 
pass of  a  life  or  lives  in  being,  or  a  reasonable  number  of  years ;  at 
length  it  was  extended  a  little  further,  —  namely,  to  a  child  en 
ventre  sa  mere  at  the  time  of  the  father's  death;  because,  as  that 
contingency  must  necessarily  happen  within  less  than  nine  months 
after  the  death  of  a  person  in  being,  that  construction  would  in- 
troduce no  inconvenience;  and  the  rule  has  in  many  instances 
been  extended  to  twenty-one  years  after  the  death  of  a  person 
in  being,  as  in  that  case  likewise  there  is  no  danger  of  a  per- 
petuity." 

Comparing  what  the  testator  has  done  in  the  present  case  with 
what  is  above  cited,  it  will  appear  that  he  has  not  postponed  the 
vesting  even  so  long  as  he  might  have  done. 

The  second  objection  which  has  been  made  in  this  case  is,  that. 
the  testator  has  added  to  the  lives  of  persons  in  being  at  the 
time  of  his  decease  those  of  persons  not  then  born.  It  becomes, 
therefore,  necessary  to  discover  in  what  sense  the  testator  meant 
to  use  the  words  "born  in  due  time  afterwards."  Such  words,  in 
the  case   of  a   man's   own   children,  mean   the   time  of  gestation. 


>04  ACCUMULATION. 


No.  1.  -  -Thellusson  v.  Woodford. 


What  is  to  be  intended  by  these  words  in  his  will  must  be  col- 
lected from  the  will  itself.  It  may  be  collected  from  the  will 
itself  that  by  those  words  the  testator  meant  to  describe  the 
period  of  time  within  which  issue  might  be  born,  during  whose 
lives  the  trust  might  legally  continue  ;  or,  in  other  words,  whom 
th"  law  would  consider  as  born  at  the  time  of  his  decease. 
These  could  only  be  such  children  of  the  several  persons  named 
as  their  respective  mothers  were  ensient  with  at  the  time  of  his 
death.  He  may  have  meant  to  use  the  word  "due"  as  denoting 
that  period  of  time  which  would  be  the  necessary  period  for  ef- 
fecting his  purpose.  This  is  probable  from  his  using  the  same 
word,  as  applied  to  the  time,  during  which  the  presentation  to 
the  living  of  Marr  might  be  suspended  without  incurring  a  lapse. 
That  a  child  en  ventre  sa  mere  was  considered  as  in  existence,  so 
as  to  be  capable  of  taking  by  executory  devise,  was  maintained  by 
Powell  in  the  case  of  Loddington  v.  Kime,  1  Ld.  Rayin.  207,  upon 
this  ground  :  that  the  space  of  time  between  the  death  of  the 
father  and  the  birth  of  the  posthumous  son  was  so  short  that  no 
inconvenience  could  ensue.  So  in  Norihey  v.  Strange,  1  P.  Wins. 
340,  Sir  J.  TREVOR  held,  that  by  a  devise  to  children  and  grand- 
children an  unborn  grandchild  should  take.  Two  years  after, 
Lord  Macclesfield,  in  Burdet  v.  Hopegood,  1  P.  Wins.  486,  held 
that,  where  a  devise  was  to  a  cousin,  if  the  testator  should 
leave  no  son  at  the  time  of  his  death,  a  posthumous  son  should 
take,  as  being  left  at  the  testator's  death.  In  Wallis  v.  Hodgson, 
2  Atk.  117,  Lord  Hardwicke  held,  that  a  posthumous  child  was 
entitled  under  the  Statute  of  Distributions  ;  and  his  reason  de- 
serves notice.  "  The  principal  reason,"  says  he,  "  that  I  go  upon,  is, 
that  the  plaintiff  was  en  ventre  sa  mere  at  the  time  of  her  brother's 
death,  and  consequently  a  person  in  rerum  naturd;  so  that  by  the 
rules  of  the  common  and  civil  law  she  was,  to  all  intents  and 
purposes,  a  child,  as  much  as  if  born  in  the  father's  lifetime." 
Such  a  child,  in  charging  for  the  portions  of  other  children  liv- 
ing at  the  death  of  the  father,  is  included  as  then  living  :  Beale 
v.  Beale,  1  P.  Wins.  244,  and  so  in  a  variety  of  other  cases.  In 
Basset  v.  Basset,  3  Atk.  203,  Lord  Hakdwicke  decreed  rents  and 
profits,  which  had  accrued  at  a  rent-day  preceding  bis  birth,  to  a 
posthumous  child  ;  and  since  the  statutes  of  10  &  11  Win.  III.  c.  16, 
?uch  children  seem  to  be  considered  in  all  cases  of  devise,  and  mar- 
riage or  other  settlement    to  '  '  living  at  the  death  o'f  their  father, 


ACCUMULATION.  505 


No.  1.  -   Thellusson  v.  Woodford. 


although  not  born  till  after  his  decease.     It  is  otherwise  considered 
in  the  ease  of  descent.     In  Roe  v.  Quartley,  1  T.  R.  634;  1  1!.  R. 

326,  the  devise  was  to  Hester  Read  for  life,  daughter  of  Walter 
Read,  and  to  the  heirs  of  her  body  ;  and  for  default  of  such  issue, 
to  such  child  as  the  wife  of  Walter  Read  is  now  ensient  with,  and 
the  heirs  of  the  body  of  such  child,  then  to  the  right  heirs  of 
Walter  Read  and  Mary  his  wife.  It  was  contended  that  the  lasl 
limitation  was  too  remote,  as  coming  after  a  devise  to  one  not  in 
being,  and  his  issue.  But  the  court  said,  that  since  the  statute  of 
King  William,  which  puts  posthumous  children  on  the  same  foot- 
ins  with  children  born  in  the  lifetime  of  their  ancestor,  this  obiec- 
tion  seemed  to  be  removed,  whatever  was  the  case  before.  In 
Gulliver  v.  Wickett,  1  Wils.  105.  the  devise  was  to  the  wife  for  life, 
then  to  the  child,  with  which  she  was  supposed  to  be  ensient,  in 
fee,  provided  that  if  such  child  should  die  before  twenty-one, 
leaving  no  issue,  the  reversion  should  go  to  other  persons  named. 
The  court  said,  if  there  had  been  no  devise  to  the  wife  for  life, 
which  made  the  ulterior  estate  a  contingent  remainder,  the  devise 
to  the  child  en  ventre  sa  mere,  being  in  futuro,  would  have  been  a 
good  executory  devise.  In  Doe  v.  Lancashire,  5  T.  R.  49  ;  '1  R.  \\. 
535,  the  Court  of  King's  Bench  has  held,  that  marriage  and  the 
birth  of  a  posthumous  child  revoke  a  will,  in  like  manner  as  if  the 
child  had  been  born  in  the  lifetime  of  the  father.  In  Doe  v. 
Clarke,  2  H.  Bl.  399  ;  3  R.  R.  431,  Lord  Chief  Justice  Eyre  holds, 
that  independent  of  intention  an  infant  en  ventre  sk  mere,  by  the 
course  and  order  of  nature,  is  then  living,  and  comes  clearly  within 
the  description  of  a  child  living  at  the  parent's  decease  ;  and  he 
professes  not  to  accede  to  the  distinction  between  the  cases,  in 
which  a  provision  has  been  made  for  children  generally,  and  where 
the  testator  has  been  supposed  to  mark  a  personal  affection  for 
children  who  happened  to  lie  actually  born  at  the  time  of  his 
death.  The  most  recent  case  is  that  of  Long  v.  Blackall,  :'>  Yes. 
486;  7  T.  R,  100;  4  R.  R.  73.  There  the  Court  of  King's  Bench 
had  no  doubt,  that  a  devise  to  a  child  en  ventre  sa  mere  in  the  first 
instance  was  good,  and  a  limitation  over  was  good  also,  on  the  con- 
tingency of  there  being  no  issue  male  or  descendant  of  issue  male 
living  at  the  death  of  such  posthumous  child.  It  seems,  then. 
that  if  estates  for  life  had  been  given  to  the  several  cestuis  que 
vie  in  this  will,  and  after  their  deaths  to  their  children,  either  born 
or  en  ventre  sa  mere  at  the  testator's  death,  they  would  have  been 


5UG  ACCUMULATION. 


No.  1.  —  ThellussDii  v.  Woodford. 


good.  No  tendency  to  perpetuity,  then,  can  arise  in  the  case  of 
.such  lives  being  taken,  not  to  confer  on  them  a  measure  of  the 
beneficial  interest,  but  to  fix  the  time  during  which  the  vesting 
of  the  property,  which  is  the  subject  of  this  devise,  shall  be  pro- 
tracted, inasmuch  as  the  circulation  of  real  property  is  no  more 
fettered  in  one  case  than  in  the  other.  it  is,  however,  observa- 
ble, that  this  question  may  never  arise  if  it  shall  so  happen  that 
the  children  in  ventre  matris  at  the  death  of  the  testator  shall  not 
.survive  those  who  were  then  born. 

The  third  ground  of  objection  depends  upon  the  application  of 
the  restrictive  words  which  are  added  to  the  enumeration  of  the 
different  classes  of  persons  during  whose  lives  the  restriction  is 
suspended.  This  objection,  1  conceive,  will  be  removed  by  the 
application  of  the  usual  rules  in  construing  wills  to  the  present 
case.  First,  where  the  intention  of  the  testator  is  clear,  and  is 
consistent  with  the  rules  of  law,  that  shall  prevail.  His  intention 
evidently  was  to  prevent  alienation  as  long  as  by  law  he  could. 
If,  then,  it  is  to  be  supposed  that  the  restrictive  words  are  to  be 
confined  to  the  last  of  seven  different  descriptions  of  persons,  and 
that  the  testator  intended  to  leave  the  four  descriptions  of  per- 
sons which  immediately  preceded  this  seventh  class  without  the 
benefit  of  such  restriction,  although  they  equally  stand  in  need 
of  it,  we  must  do  the  utmost  violence  to  all  established  rules  on 
this  head.  That  construction  is  to  be  adopted  which  will  support 
the  general  intent.  The  grammatical  rule  of  referring  qualifying- 
words  to  the  last  of  the  several  antecedents,  is  not  even  supposed 
by  grammarians  themselves  to  apply,  when  the  general  intent  of 
a  writer  or  speaker  would  be  defeated  by  such  a  confined  appli- 
cation of  them.  Iieason  and  common  sense  revolt  at  the  idea  of 
overlooking  the  plain  intent  which  is  disclosed  in  the  context, — 
namely,  that  they  should  be  applicable  to  such  classes  as  require 
them,  and  as  to  the  others  to  consider  them  as  surplusage.  If 
words  admit  of  more  constructions  than  one,  that  which  will 
support  the  legal  intention  of  the  testator  is  in  all  cases  to  be 
adopted.  I  do  not  trouble  your  Lordships  with  any  observation 
upon  the  objections  arising  from  the  magnitude  of  the  property 
in  question,  either  as  it  now  stands  or  may  hereafter  stand;  or 
as  to  the  motives  which  may  have  influenced  this  testator,  or  his 
neglect  of  those  considerations  by  which  I  or  any  other  individ- 
ual may  or  ought  to  hive   been   moved.     That  would  be  to  sup- 


ACCUMULATION.  507 


No.  1  — Thellusson  v.  Woodford. 


pose  that  such  topics  can  in  any  way  affect  the  judicial  mind. 
For  these  imperfect  reasons  1  concur  with  the  rest  of  the  Judges 
in  offering  this  answer  to  your  Lordships'  first  question. 

With  respect  to  your  Lordships'  second  question,  the  objection 
to  such  child  being  entitled  must  arise  from  an  allowance  having 
been  made  for  the  time  of  gestation  at  the  end  of  the  executory 
trusts.  It  seems  to  be  settled  that  an  estate  may  he  limited  in 
the  first  instance  to  a  child  unborn,  and,  I  apprehend,  to  the  first 
and  other  sons  in  fee,  as  purchasers.  The  case  of  Long  v.  Blackall, 
'A  Ves.  486;  7  Term  Rep.  100;  4  R.  R.  73,  seems  to  have  decided 
that  an  infant  in  ventre  m.atris  is  a  life  in  being.  The  estab- 
lished length  of  time  during  which  the  vesting  may  be  suspended 
is  during  a  life  or  lives  in  being,  the  period  of  gestation,  and 
the  infancy  of  such  posthumous  child.  If,  then,  this  time  has 
been  allowed  in  some  cases  at  the  beginning,  and  in  others  at 
the  termination,  of  the  suspension,  and  if  such  children  are  con- 
sidered by  the  construction  of  the  statute  of  10  &  11  Win.  III. 
c.  16,  as  being  horn  to  such  purposes,  what  should  prevent  the 
period  of  gestation  being  allowed  both  at  the  commencement 
and  termination  of  the  suspension,  if  it  should  be  called  for?  In 
those  cases  where  it  has  been  allowed  at  the  commencement,  and 
particularly  in  Long  v.  Blackall,  it  must  have  been  obvious  to  the 
court  that  it  might  be  wanting  at  the  termination  ;  yet  that  was 
never  made  an  objection.  In  Gulliver  v.  Wickett,  1  Wils.  10.~>,  the 
child  who  was  supposed  to  be  en  ventre  sa  mere  might  have  mar- 
ried and  died  before  twenty-one,  and  have  left  his  wife  ensient.  In 
that  case  a  double  allowance  would  have  been  required  ;  yet  that 
possibility  was  never  made  an  objection,  although  it  was  obvious. 
In  Long  v.  Blackall,  according  to  the  printed  report,  the  precise 
point  was  not  gone  into.  But  it  is  plain  that  the  attention  of  the 
»court  must  have  been  drawn  to  it;  for  the  learned  Judge  (Mr. 
Justice  Chambre,  then  at  the  bar)  who  argued  that  case  in  supporl 
of  the  devise,  expressly  stated  that  every  common  case  of  a  limi- 
tation over,  after  a  devise  for  a  life  in  being,  with  remainder  in 
trust  to  his  unborn  issue,  includes  the  same  contingency  as  was 
then  in  question;  for  the  devisee  for  life  may  die  leaving  his  wife 
•ensietit  ;  and  the  only  difference  is,  that  the  period  of  gestation 
occurs  at  the  beginning  instead  of  the  end  of  the  first  legal  es- 
tate. It  must  have  been  palpable  that  it  might  possibly  occur  at 
both  ends.     Every  reason,  then,  for  allowing  the  period  of  gesta- 


508  ACCUMULATION. 


No.  1.  —  Thellusson  v.  Woodford. 


tion  in  the  one  case  seems  to  apply  with  equal  force  to  the  other,. 
and  leads  the  mind  to  this  conclusion,  that  it  ought  to  he  allowed, 
in  both  cases,  or  in  neither  case.  But  natural  justice,  in  several 
cases,  having  considered  children  en  nut  re  sa  mere  as  living  at  the 
death  of  the  father,  it  should  seem  that  no  distinction  can  proper!) 
he  made;  but  that  in  the  singular  event  of  both  periods  being 
required,  they  should  be  allowed,  as  there  can  be  no  tendency  to  a 
perpetuity. 

The  Lokd  Chancellor.  The  learned  Judges  having  given  their 
opinion  upon  the  points  of  law  referred  to  them,  no  question  re- 
mains to  which  the  attention  of  the  House  should  be  particularly 
called,  except  the  point  arising  out  of  this  will,  and  which  could 
not  be  referred  to  the  Judges,  with  regard  to  the  accumulation 
of  the  rents  and  profits.  When  this  cause  was  decided  in  the 
Court  of  Chancery,  it  was  decided  by  Lord  ROSSLYN,  with  the  as- 
sistance of  Lord  Alvanley,  Mr.  Justice  Buller,  and  Mr.  Justice* 
Lawrence  ;  and  it  is  well  known  that  the  late  Chief  Justice,  Lord 
Kenyon,  of  the  Court  of  King's  Bench  could  hardly  be  brought  to 
think  any  of  the  questions  in  this  case  fit  for  argument,  conceiving 
it  dangerous  to  give  so  much  of  serious  agitation  to  them  as  has 
1 n  had.  considering  what  had  been  settled  with  respect  to  execu- 
tory devise  and  accumulation.  Some  of  your  Lordships  have  had 
the  advantage  of  hearing  the  opinion  of  Lord  Thurlow,  which 
cannot  be  doubted  upon  this  point,  after  his  Lordship  has  laid 
down,  in  Robinson  v.  ffardcastle,  2  Br.  C.  C.  22;  see  p.  30,  what  is 
unquestionable  law,  that  it  is  competent  to  a  testator  to  give  a  life- 
estate,  to  lie  appointed  by  the  survivor  of  1000  persons.  That 
estate  would  be  to  commence  at  the  death  of  the  last  of  those 
1000  persons.  Upon  the  questions  of  law  your  Lordships  have 
had  the  unanimous  opinion  of  the  several  learned  Judges.  As 
far  as  judicial  opinion  can  be  collected,  there  is  therefore  the 
testimony  of  all  the  judicial  opinion  I  have  detailed  concurrent 
upon  this  great  ease, — great,  with  reference,  not  to  the  questions 
arising  out  of  it.  but  to  that  circumstance,  of  which,  whatever 
attention  your  Lordships  may  think  proper  to  give  it  in  your 
legislative  capacity,  you  cannot,  exercising  the  function  of  Judges, 
take  notice  ;  for  the  question  of  law  is  the  same  upon  a  property  of 
£100  or  a  million.  If  it  were  possible,  speaking  judicially,  to  say 
you  entertain  a  wish  upon  the  subject,  your  Lordships  may  all 
concur  in  the  regret  that  such  a  will  should  be  maintained.      But 


A.CCI  MULAT10N.  509 


No.  1.  —  Thellusson  v.  Woodford. 


that  goes  no  farther  than  as  a  motive  to  see  whether  it  contains 
anything  resting  upon  which  we  may  as  Judges  say  it  is  an  attempt 
to  make  an  illegal  disposition. 

When  this  was  put  originally  as  a  case,  representing  that  it  was 
monstrous  to  tic  up  property  for  nine  lives,  it  seemed  to  me  a  pro- 
position that  is  incapable  of  argument  as  lawyers ;  for  the  length 
of  time  must  depend,  not  upon  the  number,  but  upon  the  nature, 
of  the  lives.  If  we  are  to  argue  upon  probability,  two  lives  may 
be  selected,  affording  much  more  probability  of  accumulation  and 
postponement  of  the  time  of  vesting  than  nine  or  ninety-nine 
lives.  Look  at  the  obituary  of  this  House  since  the  year  1796, 
when  this  will  was  made.  Suppose  the  testator  had  taken  the  lives 
of  so  many  of  the  Peers  as  have  died  since  that  time,  that  would 
have  been  between  twenty  and  thirty  lives  ;  and  yet  that  number 
has  expired  in  a  very  short  period.  It  cannot  therefore  depend 
upon  the  magnitude  of  the  property  or  the  number  of  lives  ;  but 
the  question  always  is,  whether  there  is  a  rule  of  law  fixing  a 
period  during  which  property  may  be  unalienable.  The  language 
of  all  the  cases  is,  that  property  may  be  so  limited  as  to  make  it 
unalienable  during  any  number  of  lives,  not  exceeding  that  to 
which  testimony  can  be  applied  to  determine  when  the  survivor 
of  them  drops. 

If  the  law  is  so  as  to  postponing  alienation,  another  question 
-arises  out  of  this  will,  which  is  a  pure  question  of  equity, — 
Avhether  a  testator  can  direct  the  rents  and  profits  to  be  accumu- 
lated for  that  period  during  which  he  may  direct  that  the  title 
.shall  not  vest  and  the  property  shall  remain  unalienable  ;  and 
that  he  can  do  so,  is  most  clear  law.  A  familiar  case  may  be 
put.  If  this  testator  had  given  the  residue  of  his  personal  estate 
to  such  person  as  should  be  the  eldest  male  descendant  of  Peter 
Isaac  Thellusson  at  the  death  of  the  survivor  of  all  the  lives 
mentioned  in  this  will,  without  more,  that  simple  bequest  would 
in  effect  have  directed  accumulation  until  it  should  be  seen  what 
individual  would  answer  the  description  of  that  male  descendant ; 
and  the  effect  of  the  ordinary  rule  of  law,  as  applied  in  equity, 
would  have  supplied  everything  that  is  contained  in  this  will  as 
to  accumulation;  for  the  first  question  would  be,  Is  the  executory 
devise  of  the  personal  estate  to  the  future  individual,  so  described, 
good  ?  If  it  is,  wherever  a  residue  of  personal  estate  is  given,  the 
interest  goes  with   the  bulk  ;    and   there  is  no  more   objection   to 


510  ACCUMULATION. 


No.  1.  —  Thellusson  v.  Woodford. 


giving  that  person  that  which  is  only  forming  another  capital, 
than  to  giving  the  capital  itself.  But  the  constant  course  of  a 
court  of  equity  is  to  accumulate  interest  from  time  to  time  with- 
out a  direction,  and  to  hand  over  the  accumulation  to  that  person 
who  is  to  take  the  capital.  Take  another  instance  of  accumula- 
tion :  suppose  the  nine  persons  named  in  this  will  had  heen 
lunatics;  without  any  direction,  there  would  have  been  an  accu- 
mulation of  the  interest  and  profits  of  all  these  estates.  In  truth, 
there  is  no  objection  to  accumulation,  upon  the  policy  of  the  law 
applying  to  perpetuities ;  for  the  rents  and  profits  are  not  to  be 
locked  up  and  made  no  use  of,  for  the  individuals  or  the  public- 
The  effect  is  only  to  invest  them  from  time  to  time  in  land;  so  that 
the  fund  is  not  only  in  a  constant  course  of  accumulation,  but 
also  in  a  constant  course  of  circulation.  To  that  application  what 
possible  objection  can  there  be  in  law  ? 

But  this  is  not  new;  for  in  the  case  upon  Lady  Denison's  will, 
Harrison  v.  Harrison,  21st  July,  1786,  Lord  Kenyon,  who  saw 
great  danger  in  permitting  argument  to  go  too  far  against  settled 
rules,  held  most  clearly  that  the  testatrix  had  well  given  her 
property  to  such  second  son  of  her  infant  niece  as  should  first 
attain  the  age  of  twenty-one,  and  directed  accumulation  through 
the  whole  of  that  period,  —  following  Lord  Hardwicke  and  his 
predecessors,  and  taking  the  rule  to  be  perfectly  clear  that,  sc* 
long  as  the  property  may  be  rendered  unalienable,  so  long  there 
may  be  accumulation  ;  that  in  common  sense  it  is  only  giving 
the  accumulation  to  the  person  who  is  to  take  the  fund  itself,  if  it 
could  be  foreseen  who  that  person  would  lie.  Therefore,  as  to 
giving  the  property  at  the  expiration  of  nine  lives  and  the  accu- 
mulation, I  never  could  doubt  upon  these  points.  The  latter  could 
not  be  a  subject  of  dispute  before  the  late  act  of  Parliament  (Stat. 
.°>()  &  40  Geo.  III.  c.  98),  which  has  been  sometimes,  though  without 
foundation,  attributed  to  me,  and  which  in  some  respects  I  would 
have  corrected,  if  it  had  not  come  upon  me  rather  by  surprise- 
That  Act,  however,  expressly  alters  what  it  takes  to  have  been  the 
former  law  upon  the  subject,  admitting  the  right  to  direct  accumula- 
tion, and  reducing  that  right  in  given  cases  to  the  period  of  twenty- 
one  years.  The  amount  of  accumulation,  even  through  the  provi- 
sions of  that  Act,  though  only  to  endure  for  twenty -one  years,  might 
in  many  instances,  by  giving  the  son  a  scanty  allowance,  be  enor- 
mous.   I  do  not  think  it  was  intend  >d,  but  the  accumulation  directed 


ACCUMULATION.  511 


No.  1.  —  Thellusson  v.  Woodford. 


by  this  will  must  under  that  Act  have  gone  on  for  twenty-one  years. 
In  the  construction  of  that  Act  it  lias  been  held,  that  it  only  makes 
void  so  much  of  the  disposition  as  exceeds  twenty-one  years,  leaving 
it  good  for  that  period.  Griffiths  v.  Vere,  !»  Ves.  127;  Longden  v. 
Simson,  12  Ves.  295.  Upon  the  old  rule,  also,  accumulation  for 
particular  purposes  might  have  gone  on  for  nine  lives,  or  more. 

The  only  points  that  appear  to  me  fairly  to  hear  argument  are, 
the  critical  discussion  upon  the  word  '-as,''  as  a  relative  term,  and 
that  with  reference  to  the  double  period  of  gestation.  As  to  the 
former,  if  your  Lordships  could  from  dislike  to  such  a  will  refuse 
that  construction  which  will  consider  that  word  as  a  word  of 
reference  to  each  preceding  description  of  persons,  grounding  tha- 
coiistruction  upon  the  manifest  intention  of  the  testator  upon  the 
whole  will  to  make  the  property  unalienable  as  long  as  he  could, 
you  would  gratify  that  inclination  at  the  expense  of  overturning 
all  the  rules  of  construction  that  have  been  settled  and  applied  foi 
ages  to  support  wills.  If  your  Lordships  will  give  any  relief  by 
legislative  interference  against  this  will,  that  is  a  very  bold  propo- 
sition ;  hut  not  so  bold  as  that,  because  you  dislike  the  effect  of 
the  will,  you  will  give  a  judgment  wrong  in  point  of  law. 

As  to  the  other  point,  upon  the  words,  "born  in  due  time  after- 
wards," I  observe  in  the  report,  4  Ves.  314,  315,  321,  the  Judges 
Lawrence  and  Bullee  afford  each  a  construction  of  these  words, 
—  the  one,  that  they  mean  children  en  renin:  sa  mere;  the  other 
heVd  them  a  declaration  of  the  testator's  will  that  the  property 
shall  be  unalienable,  and  the  accumulation  go  on,  during  the  lives 
of  all  the  persons,  born  or  unborn,  whom  the  law  would  authorise 
him  to  take  as  the  lives  for  restraint  of  alienation,  and  for  the 
purpose  of  accumulation.  In  my  opinion,  either  of  those  construc- 
tions may  be  taken  to  be  the  intention  consistently  with  the  rules 
of  law;  but  consistently  with  the  rules  of  law  your  Lordships  can- 
not reject  both,  but  must  give  the  words  such  a  construction  as 
will  support  the  manifest  intention  of  the  testator.  It  is  therefore 
beucle  the  point  to  ask  what  child  shall  take,  or  when  a  child 
shall  take  ;  for  the  testator  is  describing,  not  the  object  to  take, 
but  the  lives  of  persons,  in  order  to  define  the  period  during  which 
the  power  of  alienation  shall  not  exist,  and  the  accumulation  shall 
go  on.  But  if  it  is  necessary,  I  have  no  difficulty  in  stating,  as  a 
lawyer,  that  the  rule  of  law  has  been  properly  laid  down,  that  the 
time  of  gestation  may  be  taken  both  at  the  beginning  and  the  end; 


512  ACCUMULATION. 


No.  1.  —  Thellusson  v.  Woodford.  —  Notes. 


and  that  is  what  was  meant  in  Gulliver  v.  Wickett,  1  Wils.  105,  in 
which  case  the  devise  was  to  a  child  en  centre  set  mere,  and  to  go 
over  if  that  child  should  die  under  the  age  of  twenty-one,  leaving 
m>  issue.  In  the  construction  of  that  limitation,  expressly  to  a 
child  en  ventre  sa  mere,  suppose  that  child  had  at  the  age  of 
twenty  married,  and  died  six  months  afterwards,  leaving  his  wife 
ensient ;  that  property,  absolutely  given  to  him,  would  not  be 
devested  merely  because  the  child  was  not  born  till  three  months 
after  his  death.  In  fair  reasoning,  therefore,  that  is  the  construc- 
tion of  the  words. 

Of  the  case  of  Long  v.  Blackall,  3  Yes.  486 ;  4  E.  R  73 ;  7  Term 
Rep.  100,  in  which  I  was  counsel,  I  can  give  a  faithful  history.  It 
was  my  duty  to  submit  to  the  Lord  Chancellor  the  point  that  the 
allowance  was  claimed  at  both  ends  of  the  period.  His  Lordship 
treated  the  point  not  with  much  respect;  but  I  prevailed  with  him, 
against  his  inclination,  to  send  it  to  the  Court  of  King's  Bench. 
Upon  the  report  of  the  case  in  that  court,  the  point  did  not  appear 
to  have  been  discussed.  I  therefore  pressed  the  Lord  Chancellor 
to  send  the  case  back.  His  answer  was  as  rough  as  his  nature, 
which  wTas  very  gentle,  would  permit,  and  shows  the  clear  opinion 
he  had  upon  the  point.  He  said  distinctly,  he  was  ashamed  of 
having  once  sent  it  to  a  court  of  law,  and  would  not  send  it  there 
again.  I  know  Lord  Kenyon's  opinion  upon  the  subject  was 
clear ;  so  were  those  of  Mr.  Justice  Bullki;  and  Mr.  Justice 
Lawrence,  as  may  be  collected  from  the  report  of  these  causes. 
This  case,  therefore,  comes  to  this,  and  this  only.  The  legal  and 
equitable  doctrine  is  clear;  and  then  the  question  is,  with  what- 
ever regret  we  may  come  to  the  determination,  Is  it  not  our  duty 
to  determine  according  to  the  rules  of  law  and  equity  '.  Upon  the 
question  whether  this  judgment  ought  to  be  reversed,  1  am  bound 
to  say  it  ought  not,  but  that  it  ought  to  be  affirmed. 

The  decree  was  affirmed  accordingly. 

ENGLISH  NOTES. 

This  was  the  case  which  suggested  tin-  restriction  by  statute  of  the 
powers  of  directing  accumulation,  which  was  done  by  the  Act  39  &  40 
<4eo.  III.,  e.  98,  commonly  called  The  Thellusson  Act,  passed  on  the  28th 
July,  1800.  By  this  Act  (briefly  stated)  all  persons  are  prohibited  from 
settling  property  by  deed  or  will  made  after  the  passing  of  the  Act,  so 
that  the  rents  and  profits  shall  be  wholly  or  partially  accumulated  for 


ACCUMULATION. 


No.  1.  —  Thellusson  v.  Woodford.  —Notes. 


a  longer  term  than  the  life  of  the  settlor,  or  twenty-one  years  after  his 
death,  or  during  the  minority  of  a  person  or  persons  living  at  the  time 
of  the  death  of  the  sett  lor.  Or  during  the  minor  it  y  or  respective  minori- 
ties only  of  a  person  or  persons  who,  if  of  full  age,  would  have  been 
absolutely  entitled  under  the  settlement;  and  it  was  enacted  that  any 
rents  or  profits  directed  to  he  accumulated  contrary  to  the  Act  should 
go  to  the  person  who  would  have  been  entitled  thereto  if  such  accumu- 
lation had  not  been  directed.  It  was  provided  that  the  prohibition 
should  not  extend  to  a,  provision  for  payment  of  debts  of  the  settlor,  or 
for  raising  portions  for  children  of  the  settlor,  or  of  a  person  taking  an 
interest  under  the  settlement. 

In  the  case  of  Griffiths  v.  Vere,  9  Ves.  127,  decided  in  1803  (and 
Defore  the  ultimate  decision  of  the  House  of  Lords  in  the  principal 
case),  it  was  decided  by  Lord  Klddn,  ('.  J.,  affirming  the  judgment 
of  the  Master  of  the  Rolls  (Sir  Win.  Grant),  that  where  directions 
were  made  by  a  will  for  accumulation  during  a  certain  life,  the  direc- 
tion for  accumulation  was  good  for  the  period  of  twenty-one  years  if 
the  life  lasted  so  long.  And  in  Longdon  v.  Simson  (1806),  1-  Ves. 
295,  it  was  held  that  the  accumulation  is  void  only  for  the  excess, 
whether  it  has  been  directed  for  an  uncertain  or  for  a  certain  period. 

Although  the  will  contains  no  express  direction  to  accumulate,  }~et 
if  an  accumulation  necessarily  takes  nlace  by  reason  of  the  form  in 
which  the  property  is  given,  the  ease  falls  within  the  Act,  Tench  v. 
Cheese  (1855),  G  De  G.  M.  &  G.  453.  (Opinion  by  Lord  Ci;  ax- 
worth,  Chancellor,  p.  461);  Talbot  v.  Jevers  (1875),  L.  11.,  20  Eq. 
255;  44  L.  J.  Ch.  646;  Weatherall  v.  Thornburgh  (('.  A.  1878). 
<S  Ch.  1).  261;  47  L.  J.  Ch.  658. 

Where  income  of  residue,  or  of  a  share  of  residue,  is  directed  to  be 
accumulated  for  a  period  beyond  that  allowed  by  the  Act.  for  the  benefit 
of  persons  named  or  described,  the  effect  of  the  statute  is  that  the  in- 
come, during  the  period  for  which  accumulation  is  unlawful,  goes  to 
the  next  of  kin  as  undisposed  of.  And,  similarly,  rents  and  profits  of 
real  estate  unlawfully  directed  to  be  accumulated  would  go  to  the  heir 
at  law.  McDonald  v.  Bryce  (1838),  2  Keen,  276;  Eyre  v.  Marsden 
(1838),  1'  Keen,  564;  Te,vh  v.  Cheese  (1855),  6  De  G.  M.  &  G.  453; 
Simmons  v.  Pitt  (1873),  L.  R.,  8  Ch.  978;  43  L.  J.  Ch.  L'<;7;  Talbot 
v.  Jevers  (1875),  L.  R.,  20  Eq.  255;  44  L.  J.  Ch.  646;  Weatherall  v. 
Thornburgh  (C.  A.  1878),  8  Ch.  D.  261;  47  L.  J.  Ch.  658.  But  where 
the  direction  to  accumulate  for  certain  beneficiaries  is  followed  by  an 
ultimate  gift  of  residue,  the  residuary  legatees  under  the  ultimate  gift 
become  entitled  to  the  income  so  unlawfully  directed  to  be  accumulated. 
Crawley  v.  Crawley  (1835),  7  Sim.  427;  O'Neill  v.  Lucas  (1838), 
2  Keen,  313;   Ellis  v.  Maxwell  (1841),  3  Beav.  587;  10  L.  J.  Ch.  266. 

VOL.   I.— 33 


514  ACCUMULATION. 


No.  2.  —  Lord  Southampton  v.  Marquis  of  Hertford.  —  Rule. 

It  has  been  decided  by  Kay,  J.,  in  Jagger  v.  Jagger  (188.")).  25  Ch. 
I).  729;  53  L.  J.  Ch.  201.  that  the  tour  different  periods  during  which 
accumulation  is  restricted  by  the  Act  are  alternative  and  not  cumulative. 
So  that  where  a  settlor,  by  deed  in  the  nature  of  a  post-nuptial  settle- 
ment, assigned  property  to  trustees  upon  trust  (subject  to  a  trust  for 
his  own  maintenance)  to  apply  during  the  joint  lives  of  his  wife  and 
himself  and  the  life  of  the  survivor  of  them  all  or  any  part  of  the  income 
for  the  maintenance  of  his  wife  and  the  children  of  the  marriage  and 
to  accumulate  the  surplus:  the  trust  tor  accumulation,  as  it  might  have 
begun  to  operate  during  the  life  of  the  settlor,  could  only  hold  good 
during  that  period;  and  could  neither  be  extended  during  the  lifetime 
of  the  wife,  nor  during  the  minorities  of  the  children.  A  similar  de- 
cision of  Vice-Chancellor  Shadwell,  In  re  Rosslyri's  trust  (1848), 
16  Sim.  391;   IS  L.  J.  Ch.  98,  was  referred  to. 

The  power  of  directing  accumulations  is  now  still  further  restricted 
by  the  Accumulation  Act,  1892  (55  &  5()  Vict.  c.  58),  applying  to  the 
United  Kingdom.  After  the  passing  of  this  Act  (dune  28,  1892)  no 
person  can  settle  property  in  such  a  manner  that  the  income  shall  b? 
wholly  or  partially  accumulated  for  the  purchase  of  land  only,  for  any 
longer  period  than  during  the  minority  or  respective  minorities  of  any 
person  or  persons,  who,  under  the  settlement,  would  for  the  time  being. 
if  of  full  age,  be  entitled  to  that  income. 

No.  2.— LORD   SOUTHAMPTON   v.   MARQUIS   OF 
HERTFORD. 

RULE. 

A  trust  for  accumulation  which  may  extend  heyond  the 
period  allowed  by  law  (without  reference  to  the  statutory 
restrictions  under  the  Thellusson  Act)  is  void  in  toto. 

So  in  a  strict  settlement  of  real  estate,  the  trust  of  a 
term  declared  to  be  for  the  purpose  of  accumulating  the 
rents  during  the  minorities  of  the  respective  tenants  for 
life  or  in  tail,  is  bad. 

Lord  Southampton  v.  Marquis  of  Hertford. 

2  Vcsey  &  Beanies,  54. 

By  indentures,  dated  the  12th  and  13th  of  July,  1790,  estates 
were  conveyed  in  strict  settlement,  subject  to  a  term  of  1000 
vears,  upon  trust,  during  the  minority  or  respective  minorities  of 


ACCUMULATION.  515 


No.  2.  —  Lord  Southampton  v.  Marquis  of  Hertford. 


any  person  or  persons  entitled  to  the  yearly  rents,  &c.,  the  trustees 
should  receive  and  take  the  yearly  rents,  &c.,  and  pay  and  apply 
so  much  as  should  remain  after  answering  the  payments  before 
or  after  mentioned  in  or  towards  the  discharm'  of  the  principal 
sums,  which  should  then  affect  the  said  estates  ;  and  after  payment 
of  all  such  charges  and  incumbrances  should,  during  such  minorit) 
©irrespective  minorities,  lay  out  and  invest  the  said  yearly  rents, 
&c.,  in  the  purchase  of  public  stocks,  &c. ;  and  receive  the  divi- 
dends, interest,  &c. ;  and  lay  out  and  invest  the  same  in  the  pur- 
chase of  or  upon  stocks,  &c,  of  the  like  nature,  so  that  the  same 
might  during  such  minority  or  respective  minorities  accumulate; 
and  to  stand  possessed  of  and  interested  in  the  sums  of  money, 
stocks,  &c,  to  he  purchased  with  such  yearly  rents,  &c,  and  the 
accumulations  thereof  respectively,  in  trust  for  such  person  or 
persons  respectively  as  should  immediately  upon  the  expiration 
of  such  minority  <>r  respective  minorities,  or  the  death  or  deaths 
of  such  minor  or  minors,  be  tenant  or  tenants  in  possession,  or 
entitled  to  the  rents  and  profits,  and  be  of  the  age  of  twenty- 
one  years;  and  that  in  the  mean  time  and  until  the  said  rents, 
issues,  and  profits  should  amount  to  a  sum  competent  for  the 
discharge  of  the  sums  so  to  be  discharged,  the  trustees  might 
invest  the  same  in  the  purchase  of  stock.  &c. ;  and  that  in  such 
case  the  dividends  and  interest  of  such  last  mentioned  stock 
should  be  accumulated,  and  the  same  and  the  accumulation  thereof 
be  laid  out  and  invested,  as  last  hereinbefore  mentioned,  till  the 
same  respectively  should  be  applied  in  the  discharge  of  the  said 
sums  of  money  so  to  be  discharged. 

The  bill  contended  that  the  direction  for  the  accumulation  of 
the  rents  and  profits,  during  minority,  until  there  should  he  a 
tenant  in  possession  of  the  age  of  twenty-one,  is  illegal  and  void  ; 
and  that,  therefore,  the  plaintiff,  as  tenant  in  tail,  is  entitled  to 
all  the  estates,  and  to  all,  or  so  much  of,  the  rents  and  profits  as 
should  remain  after  discharging  the  incumbrances. 

Argued  for  the  plaintiff:  — 

This  trust  for  accumulation,  not  being  within  the  act  of  Parlia- 
ment, made  in  consequence  of  the  case  on  Mr.  Thellusson's  will, 
must  fall. 

[Counsel  having  been  heard  for  the  different  defendants  claiming 
in  remainder,  the  counsel  for  the  trustees  cited  P/ripps  v.  Ketynge 
(2  Vesey  &  Beanies,  57;  13  E.  R.  16).] 


516  ACCUMULATION. 


No.  2.  —  Lord  Southampton  v.  Marquis  of  Hertford. 


Counsel  having  been  heard  in  reply. 

The  Master  of  the  Rolls  (Sir  W.  Grant).  I  have  examined 
the  case  of  Phipps  v.  Kelynge,  and  tind  it  is  in  substance  as  stated 
in  the  note  in  Fearne's  " Executory  Devises ; "  hut,  when  the  cir- 
cumstances are  attended  to,  1  do  not  think  it  will  be  found  to  be 
an  authority  for  the  proposition  that  a  trust  for  accumulation, 
exceeding  the  allowed  limits,  is  void  only  for  the  excess.  Lord 
Alvanley  in  the  Thellusson  case  says  that  Phipps  v.  Kelynge  is 
not  properly  a  case  of  accumulation,  as  Phipps  had  a  right  to  call 
from  time  to  time  to  have  the  rents  and  profits  laid  out  in  lands 
to  be  settled.  That  certainly  was  so ;  and  there  was  a  direction 
that,  until  proper  purchases  could  be  found,  the  money  should  be 
laid  out  in  Government  or  real  securities,  and  the  interest  paid  to 
the  persons  who  would  have  been  entitled  to  the  rents  and 
profits.  There  was  therefore  no  period  during  which  the  rents 
and  profits  of  the  leasehold  estate  would  have  been  wholly  with- 
drawn from  enjoyment.  Still,  to  a  certain  degree  there  was  a  trust 
for  accumulation,  as  the  rents  and  profits  themselves  are  not  to 
be  enjoyed,  but  only  the  produce  thereof,  when  invested  in  land  or 
securities.  Whether  that  was  a  trust  wholly  void,  or  good  in  part 
and  bad  in  part,  Lord  Camden  under  the  circumstances  of  the  case 
had  no  occasion  to  consider,  as  the  eldest  son,  the  first  tenant  in 
tail,  had  attained  twenty-one  before  the  suit  was  instituted.  He 
did  not  quarrel  with  the  past  application  of  the  rents  :  nor  was  it 
his  interest  to  do  so,  as  his  father,  the  tenant  for  life,  was  living. 
All  he  contended  against  his  brothers,  entitled  to  estates  tail  in 
remainder,  was,  that  this  sort  of  accumulation  should  go  no 
farther,  the  leasehold  estates  having  vested  absolutely  in  him, 
as  tenant  in  tail  of  the  freehold,  subject  to  his  father's  life  estate. 
If  that  was  true,  as  it  was  held  to  be,  it  was  immaterial  whether 
the  trust  was  retrospectively  good,  or  not;  and  therefore  it  would 
be  too  much  to  construe  the  declaration  that  the  trust  ceased  and 
became  void  upon  his  attaining  the  age  of  twenty-one,  into  a  posi- 
tive decision  that,  until  he  attained  that  age,  it  was  valid  and 
effectual ;  that  being  a  point  on  which  no  decision  was  sought  by 
any  of  the  parties  in  the  cause. 

As  Lord  Camden  decided  that  the  first  tenant  in  tail  became 
absolutely  entitled  to  the  leasehold  estate,  I  do  not  see  distinctly 
how  it  could  be  held  that  it  vested  in  him  only  at  the  age  of 
twenty-one.     The  decision   upon  the  first  point  implied  that  the 


ACCUMULATION.  517 


No.  2.  —  Lord  Southampton  v.  Marquis  of  Hertford. 

leasehold  estate  was  to  be  considered  as  subject  to  the  same 
limitation  as  the  freehold,  notwithstanding  the  attempt  to  confine 
the  successive  takers  to  the  enjoyment  of  less  than  the  entire 
rents  and  profits  of  the  leasehold.  If  so,  the  general  rule  is,  that 
the  leasehold  estate  vests  absolutely  upon  the  birth  of  the  first 
tenant  in  tail  of  the  freehold.  The  question  then  would  have 
been,  whether  the  direction  for  a  modified  accumulation  was  to 
be  taken  as  a  declaration  of  intention,  that  the  two  estates  should 
go  together,  subject  to  such  modified  accumulation,  as  long  as  the 
rules  of  law  and  equity  would  permit;  and  whether  a  court  of 
equity  would  in  consequence  of  such  intention  suspend  the 
vesting  as  long  as  the  testatrix  herself  might,  by  a  specific  pro- 
vision, have  suspended  it. 

In  the  case  of  Ware  v.  Polhill,  11  Yes.  257  :  8  11.  R.  145,  where 
the  rents  and  profits  of  leasehold  estate  were  logo  to  the  persons 
entitled  to  the  rents  of  the  freehold  and  copyhold  estates,  but  with 
a  power  to  the  trustees  at  any  time,  with  consent  of  the  persons  so 
entitled,  or,  if  minors,  at  their  own  discretion,  to  sell,  and  invest 
the  produce  in  real  estate  to  the  same  uses.  The  Lord  Chancellor 
held,  that,  notwithstanding  the  power,  the  leasehold  estate  vested 
absolutely  in  the  first  tenant  in  tail  from  the  time  of  his  birth. 

The  present  case,  however,  is  different  from  either  of  those. 
This  is  an  attempt  wholly  to  sever  the  surplus  rents  and  profits 
from  the  legal  ownership  of  the  estate  for  a  time,  that  may  extend 
much  beyond  the  period  allowed  for  executory  devises  or  trusts 
of  accumulation,  and  to  give  them  to  a  person  who  may  not  come 
into  existence  until  after  that  period.  I  do  not  see  how  any  part 
of  such  a  trust  can  he  executed.  In  Warev.  Polhill  the  Lord  Chan- 
cellor held  the  power  of  sale  to  be  void,  upon  the  ground  that  it 
might  travel  through  minorities  for  two  centuries;  and  adds,  "  If 
it  is  bad  to  the  extent  in  which  it  is  given,  you  cannot  model  it 
to  make  it  good."  1  In  Lade  v.  Hoi  ford  the  court  did  not  attempt 
to  model  the  trust,  and  make  it  good  in  the  extent  to  which  it 
might  have  been  well  carried  on  in  its  creation.  As  to  the  possi- 
bility, that  Lord  Southampton  may  attain  the  age  of  twenty-one, 
that  never  has  been  held  to  lie  an  answer  to  the  objection  that 
the  trust,   as    originally  created,   is  too  remote.     Supposing  this 

1  It  is  now,  however,  well  settled  that  a     See  Lantsberg  v.  Collier,  2  K.  &  J.  709  :   25 
power  of  sale  need  not  be  expressly  limited     L.  J.  Ch.  672. —  K.  C. 
to  take  effect   within  any   definite   time. 


518  ACCUMULATION. 


No.  2.  —  Lord  Southampton  v.  Marquis  of  Hertford.  —  Notes. 

accumulation  allowed  to  go  on,  and  he  dies  under  twenty-one, 
what  is  to  become  of  the  accumulated  fund  (  The'  deed  says,  it 
shall  go  to  the  first  person  entitled  to  the  estate  who  shall  attain 
twenty-one,  though  there  should  be  no  such  person  for  a  century 
to  come.  As  it  is  impossible  so  to  dispose  of  it,  1  should  thus 
deprive  Lord  Southampton  of  the  rents  and  profits  during  the 
years  lie  had  lived  upon  the  speculation  that  he  might  live  to 
take  the  accumulated  fund. 

My  opinion  is,  that  this  trust  is  altogether  void  except  so  far 
us  it  is  a  trust  for  the  payment  of  debts.1 

ENGLISH    NOTES. 

In  Leake  v.  Robinson  (1817),  2  Mer.  363,  the  Master  of  the  Rolls,  Si* 
Wm.  Grant,  lavs  down  the  same  doctrine*  as  that  in  the  principal  ease, 
as  follows  (p.  389)  :  "  Perhaps  if  might  have  been  as  well  if  the  courts  had 
originally  held  an  executory  devise  transgressing  the  allowed  limits  to  be 
void  only  for  the  excess,  where  that  excess  could,  as  in  this  case  it  can,  be 
clearly  ascertained.  But  the  law  is  otherwise  settled.  In  the  construc- 
tion "f  the  act  of  Parliament  passed  after  the  Thellusson  cause.  1  thought 
myself  at  liberty  to  hold  that  the  trust  of  accumulation  was  void  only 
for  the  excess  beyond  the  period  to  which  the  Act  restrained  it.  And 
the  Lord  Chancellor  afterwards  approved  of  my  decision  (Griffiths  v. 
Vere,  p.  513,  supra,  and  9  Yes. -127).  But  there  the  Act  introduced  a 
restriction  on  a  liberty  antecedently  enjoyed,  and  therefore  it  was  only  to 
the  extent  of  the  excess  that  the  prohibition  was  transgressed.  Whereas, 
executory  devise  is  itself  an  infringement  on  the  rules  of  the  common 
law.  and  is  allowed  only  on  condition  of  its  not  exceeding  certain  estab- 
lished limits.      If  the  condition  be  violated  the  whole  devise  is  held  to 

be   void. " 

In  Marshall  v.  Holloway  (1818),  2  Swanston,  432,  a  testator  de- 
vised his  estates  to  trustees  upon  trust  to  invest  and  accumulate  the 
rents  and  profits  while  any  person  beneficially  interested  by  virtue  of 
the  trusts  afterwards  declared  should  be  under  twenty-one,  and  subject 
thereto  in  trust  for  X.  (a  grandchild  living  at  his  death)  for  life,  witli 
various  remainders,  some  of  which  were  void  for  remoteness.  It  was 
held  that  the  trust  for  accumulation  was  altogether  void,  and  X.  took 
an  immediate  life  estate.  The  Lord  Chancellor  (Lord  Eldon)  on  the 
final  consideration  of  the  case,  said  he  could  not  distinguish  it  from 
Lord  Southampton  v.  The  Marquis  of  Hertford  (the  principal  case, 
p.  514,  supra). 

1  This  exception  is  confirmed  by  the  decision  of  Hall,  V.  C,  in  Tewart  v. 
Laioson  (1874),  L.  R.,  18  Eq.  490;  43  L.J.  Ch   67:;  —  R.C. 


ACCUMULATION.  519 


No.  2.  —  Lord  Southampton  v.  Marquis  of  Hertford.    -  Notes. 


The  principle  is  briefly  stated  by  Vice-Chancellor  Knight-Bruce,  in 
Broughton  v.  Jtxmes  (1844),  1  Coll.  26,  45,  as  follows:  "Before  the 
Accumulation  Act,  a,  testamentary  trust  or  direction  to  accumulate,  so 
worded  as  to  last  or  be  capable  of  lasting  beyond  the  compass  of  all  lives 
in  being  ai  the  testator's  death  and  twenty-one  years  after  tin-  death  of 
the  survivor  of  those  lives,  would  have  been  illegal  and  void  for  the 
whole,  and  such  a  trust  or  direction  i.s  not  less  illegal  or  less  void  since 
the  Accumulation  Act." 

In  Browne  v.  Houghton  (1846),  14  Sim.  369;  15  L.  J.  Ch.  391,  the 
principle  was  again  applied  by  Vice  Chancellor  ShADWELL  to  a  case 
where  testator  devised  his  estates  in  trust  for  A.  for  life,  remainder  to 
his  first  and  oilier  sons  in  tail  male,  with  remainders  over;  and  directed 
that  if  any  person  for  the  time  being  entitled  to  the  possession  of  the 
estates  should  lie  under  twenty-one,  the  trustees  should  receive  the  rents 
and  apply  a  competent  part  for  maintenance,  and  accumulate  the  residue, 
lie  held  the  trust  for  accumulation  was  void  for  remoteness. 

More  recent  applications  of  the  principle  will  be  found  in  the  Irish 
cases  of  Cochrane  v.  Cochrane  (1883),  11  L.  R.  Ir.  .">(J1 ;  and  Smith  v. 
Cunningham  (1884),  13  L.  R.  Ir.  480.  The  Thellusson  Act  does  not 
apply  to  Ireland.  But  the  same  principles  were  applied,  and  most  of 
the  above  English  cases  cited  in  the  judgments. 

AMERICAN   NOTES. 

The  doctrine  of  the  principal  case  has  but  a  limited  application  in  this 
country.  It  being  against  the  policy  of  our  democratic  institutions  to  favour 
the  accumulation  and  perpetuity  of  estates  in  families  or  classes,  many  of  the 
States  have  enacted  statutes  shortening  the  period  for  which  the  power  of  alien- 
ation may  be  suspended  and  within  which  the  estate  must  vest.  Tims,  in  New 
York,  Michigan,  Minnesota,  and  Wisconsin  the  absolute  power  of  alienation 
may  not  be  suspended  by  any  means  for  a  longer  period  than  two  lives  in 
being  at  the  creation  of  the  estate  (with  certain  exceptions)  ;  in  Connecticut 
and  Ohio  no  estate  can  be  limited  to  any  persons  unless  they  are  in  being,  or 
to  their  immediate  descendants;  in  Alabama,  estates,  other  than  those  given 
to  wife  and  children,  must  vest  within  ten  years  after  three  existing  lives  in 
being;  in  Indiana  the  limitation  is  to  any  number  of  specific  lives  existing  at 
the  time  of  the  creation  of  the  estate;  in  Kentucky  the  limitation  is  to 
twenty-one  years  and  ten  months  after  an  existing  life  or  lives  in  being,  which 
is  substantially  the  common-law  ride;  in  Mississippi,  fees-tail  are  prohibited, 
and  estates  may  be  limited  in  succession  to  two  donees  in  being  and  the  heirs 
of  the  body  of  the  remainder-man,  and  in  default  thereof  to  the  heirs  of  the 
body  of  the  donee  in  fee.  In  Iowa  and  Maryland  the  limitation  can  be  only 
for  lives  in  being  and  twenty-one  years.  In  Arkansas  and  Vermont,  perpetu- 
ities are  prohibited  by  the  constitutions,  and  it  is  believed  that  the  common- 
law  rule  as  to  suspension  prevails.     In  all  the  other  States,  except  Louisiana. 


520  ACCUMULATION. 


No.  2.  —  Lord  Southampton  v.  Marquis  of  Hertford.  —  Notes. 


where  the  civil  law  prevails,  the  common-law  rules  ar-e  supposed  to  be  in  force. 

The  foregoing  are  rules  in  respect  to  real  property. 

As  to  accumulations,  it  is  held  that  in  the  absence  of  statutory  provision, 
trusts  for  accumulation  of  rents  and  profits  of  land  must  be  measured  by  the 
rules  against  perpetuities,  and  if  they  exceed  this  limit,  they  are  wholly  void 
and  cannot  be  cut  down  to  the  legal  limit.     Perry  on  Trusts,  §  393. 

In  Xew  York,  Michigan,  Wisconsin,  and  Minnesota,  the  common-law  rule 
as  to  accumulations  has  been  modified  by  statutes,  substantially  alike,  and 
accumulation  is  restricted  to  the  minority  of  one  or  more  existing  persons  ; 
but  in  case  of  direction  for  a  longer  accumulation,  the  excess  alone  is  void.  In 
Alabama,  accumulation  is  limited  to  ten  years  or  the  minority  of  a  child  liv- 
ing at  the  creation  of  the  estate  or  at  the  death  of  the  testator.  In  Pennsyl- 
vania, the  limitation  is  for  the  life  of  the  grantor  or  testator,  and  twenty-one 
years  thereafter ;  and  if  a  longer  limitation  is  attempted,  only  the  excess  is 
void.  "  In  the  other  States,"  says  Mr.  Perry  (Trusts,  §  398),  "  the commor.-aw 
rules  are  supposed  to  prevail.  The  rule  in  regard  to  accumulation  is  analo- 
gous to  the  rules  in  regard  to  the  vesting  of  executory  estates.  At  common 
law  the  same  rule  prevails  in  both  cases.  In  many  of  the  States,  the  rules 
regarding  the  vesting  of  such  estates  have  been  altered  by  statute.  Whether 
the  modification  of  those  rules  by  statute,  without  reference  to  the  rule  as  to 
accumulations,  would  also  alter  the  rule  as  to  accumulations  in  those  Stales 
does  not  seem  to  have  been  considered." 

The  invalidity  of  a  direction  for  accumulation  will  not  impair  a  bequest  to 
which  it  is  attached,  if  it  is  separable  therefrom.  Phelps  v.  Pond,  23  New- 
York,  69 ;  Philadelphia  v.  Girard,  45  Penn.  St.  1.  But  otherwise  where  the 
bequest  is  to  take  effect  after  and  out  of  the  accumulation.  Amor//  v.  Lord,  9 
New  York,  403. 


ACT   OF   STATE. 

(See  notes  under  Action.  No.  1 0.) 


SECT.  I.  —  RIGHT    OF   ACTION    COMMENSURATE    WITH    INJURY.      52] 


No.  1.  — Ashby  v.  White.  —  Rule. 


ACTION  (Right  of). 

Section-      I.  Arises  (generally)  from  every  Injury. 

Section*     II.  For  Cause  affecting  the  Public. 

Section  III.  Where  adeemed  <>r  restricted  by  Statute. 

Section  IV.  Arising  out  of  Contract  with  Third  Person. 

Section     V.  Cases  where  no  Right  of  Action.  —  Damnum  absque  injuria. 

Section  VI.  When  the  Right  survives.  —  Actio  personalis  moritur  cum  persona. 


Section  I.  —  Arises  (generally)  from  every  Injury, 

No.  L—  ASHBY  v.  WHITE. 
(h.  l.  from  q.  b.  1703.) 

RULE. 

A  max  who  has  a  right  to  vote  at  an  election  for  members 
of  Parliament  may  maintain  an  action  (in  the  form  of  an 
action  on  the  case)  against  the  returning  officer  for  refus- 
ing to  admit  his  vote,  although  the  persons  for  whom  he 
offered  to  vote  were  elected. 


Ashby  v.  White. 

Holt,  p.  524  (s.  c.  Lord  Raymond,  938 ;  in  House  of  Lords,  1  Rro  P.  C.  47 ;  also 

8  St.  Tr.  89). 

In  an  action  upon  the  case  against  the  constables  of  Ailesburv, 
the  plaintiff  declared,  that  such  a  day  the  late  King's  writ  issued 
and  was  delivered  to  the  sheriff  of  B.  for  election  of  members  of 
Parliament  in  his  county;  whereupon  the  said  sheriff  made  out 
his  precept  or  warrant  to  the  defendants,  being  constables  of  A.,  to 
choose  two  burgesses  for  that  borough,  which  precept  was  deliv- 
ered to  the  said  Constables;  and  that,  in  pursuance  thereof,  the 
burgesses  were  truly  assembled,  &c.,  and  the  plaintiff  being  then 
truly  qualified  to  vote  for  the  election  of  two  burgesses,  offered  to 


522  ACTION    (RIGHT    OF). 


No.  1.  —  Ashby  v.  White. 


give  his  voice  for  Sir  T.  L.  and  S.  M.  Esq.,  to  be  burgesses  of  Par- 
liament for  the  said  borough  ;  but  the  defendants,  knowing  the  pre- 
mises, with  malice,  &c,  obstructed  him  from  voting,  and  refused 
and  would  not  receive  his  vote,  nor  allow  it;  and  that  two  bur- 
gesses were  chose,  without  allowing  or  receiving  his  voice.  A 
verdict  was  found  for  the  plaintiff;  and  upon  motion  in  arrest  of 
judgment,  three  judges  held,  that  this  action  would  not  lie,  till  the 
Parliament  had  decided  whether  the  plaintiff  had  a  right  to  vote 
as  an  elector. 

Holt,  C.  J.  The  case  is  truly  stated,  and  the  only  question  is, 
whether  or  not,  if  a  burgess  of  a  borough,  that  has  an  undoubted 
right  to  give  his  vote  for  the  choosing  a  burgess  of  Parliament  for 
that  borough,  is  refused  giving  his  vote,  has  any  remedy  in  the 
king's  courts  for  this  wrong  against  the  wrong-doer  ?  All  my 
brothers  agree  that  he  has  no  remedy  ;  but  I  differ  from  them,  for 
I  think  the  action  well  maintainable,  that  the  plaintiff  had  a  right 
to  vote,  and  that  in  consequence  thereof  the  law  gives  him  a 
remedy,  if  he  is  obstructed;  and  this  action  is  the  proper  remedy. 
By  the  common  law  of  England,  every  commoner  hath  a  right 
not  to  be  subjected  to  laws  made  without  their  consent;  and 
because  it  cannot  be  given  by  every  individual  man  in  person,  by 
reason  of  number  and  confusion,  therefore  that  power  is  lodged  in 
their  representatives,  elected  by  them  for  that  purpose,  who  arc 
either  knights,  citizens,  or  burgesses;  and  the  grievance  here  is 
that  the  party,  not  being  allowed  his  vote,  is  not  represented.  The 
election  of  knights  of  shires  is  by  freeholders ;  and  a  freeholder 
has  a  right  to  vote  by  reason  of  his  freehold ;  and  it  is  a  real  right, 
and  the  value  of  his  freehold  was  not  material  till  the  Statute  of 
8  Hen.  Y II.  c.  7,  which  requires  it  should  be  40.s.  a  year,  for 
before  that,  every  freeholder,  though  of  never  so  small  a  value, 
had  a  right  to  vote  at  these  elections.  In  boroughs,  some  of 
which  are  by  prescription,  they  have  a  right  of  voting  ratione 
hurgagii  and  ratione  tenurce ;  and  this,  like  the  case  of  a  free- 
holder before  mentioned,  is  a  real  right,  annexed  to  the  tenure  in 
burgage;  and  in  cities  and  corporations  it  is  a  personal  inheri- 
tance, and  vested  in  the  whole  corporation,  hut  to  be  used  and 
exercised  by  the  particular  members;  and  such  a  privilege  cannot 
lie  granted  but  to  a  corporation.  This  is  a  noble  franchise  and 
right,  which  entitles  the  subject  in  a  share  of  the  government  and 
legislature ;  and  here  the  plaintiff,  having  this  right,  it  is  apparent 


SECT.  I.  —  COMMENSURATE   WITH    INJURY. 


No.  1.  —  Ashby  v.  White. 


that  the  officer  did  exclude  him  from  the  enjoyment  of  it,  wherein 
none  will  say  he  has  done  well,  but  wrong  to  the  plaintiff;  and  it 
is  not  at  all  material  whether  the  candidate  that  he  would  have 
voted  for  were  chosen,  or  likely  to  be,  for  the  plaintiffs  right  is  tin- 
same,  and  being  hindered  of  that,  he  has  injury  done  him,  for 
which  he  ought  to  have  remedy.  It  is  a  vain  thing  to  imagine 
there  should  be  right  without  a  remedy;  for  want  of  right  and 
want  of  remedy  are  convertibles.  If  a  statute  gives  a  right,  the 
common  law  will  give  remedy  to  maintain  it ;  and  wherever 
there  is  injury,  it  imports  a  damage;  and  there  can  he  no  petition 
in  this  case  to  the  Parliament,  nor  can  they  judge  of  this  injury, 
or  give  damages  to  the  plaintiff.  Although  this  matter  relates  to 
the  Parliament,  yet  it  is  an  injury  precedaneous  to  the  Parliament  ; 
and  where  parliamentary  matters  come  before  us,  as  incident  to  a 
cause  of  action  concerning  the  property  of  the  subject,  which'  we 
in  duty  must  determine,  though  the  incident  matter  be  parlia- 
mentary, we  must  not  be  deterred,  but  are  bound  by  our  oaths  to 
determine  it.  The  law  consists,  not  in  particular  instances,  but  in 
the  reason  that  rules  them;  and  if  where  a  man  is  injured  in  one 
sort  of  right  he  has  a  good  action,  why  shall  he  not  have  it  in 
another  ?  And  though  the  House  of  Commons  have  right  to 
decide  elections,  yet  they  cannot  judge  of  the  charter  originally. 
but  secondarily,  in  the  determination  of  the  election  ;  and,  there- 
fore, where  an  election  does  not  come  in  debate,  as  it  doth  not  in 
this  case,  they  have  nothing  to  do,  and  we  are  to  erect  and  vindi- 
cate the  queen's  jurisdiction,  and  not  to  be  frightened  because  it 
may  come  in  question  in  Parliament;  and  I  know  nothing  to 
hinder  us  from  judging  of  matters  depending  on  charter  or  pre- 
scription.    He  concluded  for  the  plaintiff. 

Here,  judgment  being  given  for  the  defendant,  contrary  to  the 
opinion  of  the  Chief  Justice,  on  a  writ  of  error  afterwards  brought 
in  the  House  of  Lords,  the  judgment  was  reversed  by  a  great 
majority  of  the  Lords,  who  concurred  with  Holt,  C.  J. 


The  case  of  Ashby  v.  White  was  the  occasion  of  a  memorable 
conflict  between  the  Court  of  King's  Bench  aiid  the  House  of  (  om- 
inous, the  latter  having  arrogated  to  itself  the  exclusive  right  of 
dealing  with  all  questions  concerning  elections  of  members  of  that 
House.  This  conflict  was  ultimately  ended  by  the  dissolution  of 
Parliament,  and  it  is  unnecessary  to  pursue  the  subject  further, 


)24  ACTION    (RIGHT    OF). 


No.  1.  —  Ashby  v.  White. 


except  in  so  far  as  it  gave  the  Lord  Chief  Justice  (Holt)  an  op- 
portunity to  elaborate  his  arguments,  upon  which  the  House  of 
Lords  founded  their  judgment.  In  the  course  of  the  conflict  here 
mentioned,  the  Lords,  in  vindication  of  their  proceedings,  appointed 
a  committee,  to  he  assisted  by  the  Lord  Chief  Justice  of  the  King's 
Bench  and  the  Lord  Chief  Baron,  to  report  on  the  whole  state  of 
the  case.  The  report  of  the  committee  is  recorded  in  the  Lords' 
Journals,  27  Mar.  1704-5,  p.  597,  and  the  argument  which  it 
contains  in  support  of  the  judgment  of  the  House  is  understood  to 
have  been  substantially  the  work  of  the  Lord  Chief  Justice.  The 
argument  will  be  found  at  length  in  Gale's  edition  of  Lord  Ray.-; 
mond's  Reports,  pp.  597,  et  seq. 

In  order  to  explain  and  supplement  the  reasons  of  the  judg- 
ment of  the  Lord  Chief  Justice,  as  above  extracted  from  his  own 
(Holt's)  reports,  it  will  be  sufficient  here  to  set  forth  the  following 
passages  of  this  argument:  — 

The  law  in  all  cases  of  wrong  and  injury  hath  provided  proper 
and  adequate  remedies  :  — 

1.  When  a  man  is  injured  in  his  person,  by  being  beaten  or 
wounded,  the  law  gives  him  an  action  of  trespass,  assault  and 
battery  ;  if  by  being  imprisoned,  an  action  of  false  imprisonment. 

2.  If  his  goods  lie  taken  away,  or  trespass  done  to  his  house  or 
lands,  an  action  of  trespass  lies  to  repair  him  in  damages. 

.'!.  If  a  man  hath  a  franchise,  and  is  hindered  in  the  enjoyment 
thereof,  the  proper  remedy  is  by  an  action  on  the  case. 

The  plaintiff  in  this  case  hath  a  privilege  and  a  franchise,  and 
the  defendants  have  disturbed  him  in  the  enjoyment  thereof,  in  the 
most  essential  part,  which  is  his  right  of  voting. 

4.  Where  any  officer  or  minister  of  justice,  intrusted  with  the 
execution  of  the  process  of  law,  does  an  injury,  an  action  of  the 
case  lies  against  him.  If  the  sheriff  will  not  execute  a  writ,  by 
arresting  the  party  defendant,  or  taking  his  goods,  the  plaintiff 
shall  have  his  action  upon  the  case,  because  he  refused  to  do  his 
duty,  to  the  plaintiffs  damage. 

*  *  *  *  *  * 

The  injured  plaintiff  in  this  case  has  no  other  remedy  besides 
this  action  :  no  indictment  lies,  because  it  is  a  personal  wrong  to 
the  party,  and  no  wrong  to  the  public  ;  but  only  in  the  conse- 
quence  of  it,  as  an  evil  example,  which  tends  to  the  encourage- 
ment of  other  such  officers  to  commit  the  like  transgressions.     Not 


SECT.  I.  — COMMENSURATE    WITH    INJURY.  52o 

No.  1.  — Ashby  v.  White. 

is  there  any  danger  to  an  honest  officer  that  means  to  do  his  duty  ; 
for  where  there  is  a  real  doubt  touching  the  parties'  right  of  voting, 
and  the  officer  makes  use  of  the  best  means  to  be  informed,  and  it 
is  plain  his  mistake  arose  from  the  difficulty  of  the  case,  and  not 
from  any  malicious  or  partial  design,  no  jury  would  find  an  office] 
guilty  in  such  a  case;  nor  can  any  court  direct  them  to  do  it,  for 
it  is  the  fraud  and  the  malice  that  entitles  the  party  to  the  action. 
In  this  case  the  defendant  knew  the  plaintiff  to  be  a  burgess,  and 
yet  fraudulently  and  maliciously  hindered  him  from  his  right  of 
voting;  and  justice  must  require  that  such  an  obstinate  and  un- 
just ministerial  officer  should  not  escape  with  indemnity. 

That  the  officer  is  only  ministerial  in  this  case,  and  not  a  judge. 
nor  acting  in  a  judicial  capacity,  is  most  plain  ;  his  business  is  only 
to  execute  the  precept,  to  assemble  the  electors,  to  make  the  elec- 
tion by  receiving  their  votes,  computing  their  numbers,  declaring 
the  election,  and  returning  the  persons  elected.  The  sheriff,  or 
other  officer  of  a  borough,  is  put  to  no  difficulty  in  this  case,  but 
what  is  absolutely  necessary  in  all  cases.  If  an  execution  be 
against  a  man's  goods,  the  sheriff  must,  at  his  peril,  take  notice. 
what  goods  a  man  has. 

Another  objection  was  made  in  respect  of  the  novelty  of  the 
action:  it  was  said,  "Never  any  such  action  was  brought." 

In  answer  to  this  objection,  it  may  be  said,  that  probably  there 
have  not  been  many  occasions  given  for  bringing  such  suits.  It  is 
to  be  hoped  that  very  few  have  ever  been  so  presumptuous  as  to 
dare  to  make  an  obstinate  and  malicious  refusal  of  an  undisputed 
vote.  If  the  case  has  happened  before,  perhaps  the  party,  out  of 
consideration  that  only  small  damages  were  to  be  expected,  might 
be  discouraged,  and  think  it  better  to  acquiesce.  And  it  is  prob- 
able the  ill-designing  officer  would  be  at  least  so  cautious  as  to 
refuse  the  votes  of  such  persons  only  as  he  thought,  by  reason  of 
the  meanness  of  their  circumstances,  were  unable  to  vindicate  their 
right.  It  is  not  every  one  that  has  such  a  true  English  spirit  as 
the  plaintiff,  who  could  not  sit  down  meanly  under  a  wrong  done 
to  him  in  one  of  the  most  valuable  privileges  of  an  Englishman. 
It  is  not  the  novelty  of  the  action  that  can  be  urged  against  it,  if 
it  can  be  supported  by  the  old  grounds  and  principles  of  the.  law. 
The  ground  of  law  is  plain,  certain,  and  indeed  universal,  that 
where  any  man  is  injured  in  his  righl  by  being  either  hindered  in 
or  deprived  of  the  enjoyment  thereof,  the  law  gives  him  an  action 
to  repair  himself. 


526  action  (right  of;. 


No.  1.  —  Ashby  v.  White.  —  Notes. 


The  case  of  Hunt  v.  Bowman,  which  was,  16  Jac.  1  (A.  I).  1618); 
2  Cro.  478,  of  an  action  by  the  landlord  against  the  tenant  for 
hindering  him  from  searching  his  house  to  see  whether  it  was  in 
repair,  was  never  brought  before  that  time ;  and  that  of  Turner  v. 
Hdrting  was  not  brought  till  23  Car.  2. 

The  law  of  England  is  not  confined  to  particular  precedents  and 
cases,  but  consists  in  the  reason  of  them,  which  is  much  more 
extensive  than  the  circumstances  of  this  or  that  case.  Ratio  legis 
.est  anima  legis,  et  ubi  eadern  ratio  ibi  idem  jus,  are  known  maxims. 


ENGLISH   NOTES. 

In  liberty,  life,  and  estate,  every  man  who  hath  not  forfeited  them 
hath  a  property  and  right  which  th6  law  allows  him  to  defend:  and  if 
it  be  violated,  it  gives  an  action  to  redress  the  wrong,  and  to  punish  the 
wrong-doer.  Thomas  \.  Sowell  (1667),  Vaughan,  330,  per  Vaughan, 
C.  J.,  p.  337. 

In  Winsmore  v.  Greenbanh  (1745),  Willes,  577,  in  an  action  on  the 
case  for  enticing  away  the  plaintiff's  wife,  whereby  the  plaintiff  lost 
the  comfort  and  society  of  his  wife  and  certain  advantages  from  her 
fortune,  a  verdict  was  given  for  the  plaintiff  for  large  damages;  and  on 
motion  for  arrest  of  judgment,  decision  was  in  favour  of  the  plaintiff. 
The  general  objections  to  the  declaration  were  disposed  of  by  Willes, 
< '.  J.,  as  follows :  —  '•  The  first  general  objection  is  that  there  is  no  pre- 
cedent of  any  such  general  action  as  this,  and  that  therefore  it  will  not 
lie;  and  the  objection  is  founded  on  Lit.  §  108,  and  Co.  Lit.  81  b,  and 
several  other  books.  But  this  general  rule  is  not  applicable  to  the  pre- 
sent case;  it  would  be  if  there  had  been  no  special  action  on  the  case 
before.  A  special  action  on  the  case  was  introduced  for  this  reason, 
that  the  law  will  never  suffer  an  injury  and  a  damage  without  a  remedy; 
but  there  must  be  new  facts  in  every  special  action  on  the  case:  — 

•>  The  second  general  objection  is  that  there  must  lie  damnum  cam  in- 
juria, which  I  admit.  I  admit,  likewise,  the  consequence  that  the  fact 
laid  before  per  </>io<l  consortium  amisii  is  as  much  the  gist  of  the  action 
as  the  other;  for  though  it  should  be  laid  that  the  plaintiff  lost  the 
comfort  and  assistance  of  his  wife,  yet  if  the  fact  that  is  laid  by  which 
he  lost  it  is  a  lawful  act,  no  action  can  be  maintained.  By  injuria  is 
meant  a  tortious  act:  it  need  not  be  wilful  and  malicious  ;  for,  though 
it  be  accidental,  if  it  be  tortious,  an  action  will  lie." 

In  Chapman  v.  Pickersgill  (C.  P.  17011),  2  Wijs.  145.  an  action  was  sus- 
tained for  falsely  and  maliciously  suing  out  a  commission  of  bankruptcy, 
although  the  Chancellor  had  power  to  give  £200  damages  by  statute. 


SECT.!.  —  COMMENSURATE    WITH    INJURY.  527 

No.  1. — Ashby  v.  White.  —  Notes 


The  Lord  Chief  Justice  (Pratt)  said:  "Wherever  there  is  an  injury 
done  to  a  man's  property  by  a  false  and  malicious  prosecution,  it  is 
most  reasonable  he  should  have  an  action  to  repair  himself.  .  .  .  But, 
If  is  said,  this  action  was  never  brought;  and  so  it  was  said  in  Ashby 
v.  White.  I  wish  never  to  hear  this  objection  again.  This  action  is  for 
a  tort:  torts  are  infinitely  various,  not  limited  or  confined,  for  there  is 
nothing  in  nature  but  may  be  an  instrument  of  mischief;  and  this  of 
suing  nut  a  commission  of  bankruptcy  falsely  and  maliciously  is  of  l  In- 
most injurious  consequence  in  a  trading  country." 

In  Pasley  v.  Freeman  (1789),  3  T.  R.  51,  1  11.  IT  634,  the  point 
decided  was  that  a  false  affirmation,  made  by  the  defendant,  with  intent 
to  defraud  the  plaintiff,  whereby  the  plaintiff  receives  damage,  is  the 
ground  of  an  action  upon  the  case  in  the  nature  of  deceit;  and  that, 
whether  the  defendant  should  he  benefited  by  the  deceit,  or  not.  The 
class  of  cases  particularly  relating  to  this  ground  of  action  will  he  more 
properly  considered  under  the  topic  of  fraud.  But  it  is  appropriate  here 
to  cite  the  observation  of  AsiiHrusx,  J.  (1  R.  R.  047),  referring  to  the 
argument  that  there  was  no  precedent  of  such  an  action.  "Where 
cases,"  he  says,  "are  new  in  their  principle,  there  I  admit  it  is  neces- 
sary to  have  recourse  to  legislative  interposition  in  order  to  remedy  the 
grievance;  but  where  the  case  is  only  new  in  the  instance,  and  the  only 
question  is  upon  the  application  of  a  principle  recognised  in  the  law  to 
such  new  case,  it  will  be  just  as  competent  to  courts  of  justice  to  apply 
the  principle  to  any  case  which  may  arise  two  centuries  hence  as  it  was 
two  centuries  ago;  if  it  were  not,  we  ought  to  blot  out  of  our  lawbooks 
one  fourth  part  of  the  cases  that  are  to  he  found  in  them." 

The  keeper  of  a  prison  who  receives  and  detains  one  apprehended  and 
charged  in  his  custody  under  a  warrant,  must  take  the  risk  (although 
he  has  no  means  of  ascertaining  the  identity)  of  the  warrant  having 
been  executed  against  the  right  person,  and  is  liable  to  an  action  of 
trespass  if,  by  a  mistake  of  the  officer  to  whom  the  warrant  was  directed, 
it  has  been  executed  against  the  wrong  person.  Aaron  v.  Alexander 
(Lord  Ellenbobough,  at  Nisi  Prius,  1811),  o  Camp.  35,  13  R.  11.  741'. 

In  an  action  on  the  case  bjr  the  plaintiff,  who  had  been  damaged  by  the 
bursting  of  a  gun  sold  by  the  defendant  to  the  plaintiffs  father  for  //<>• 
use  of  himself  and  Jus  sons,  the  defendant  having  warranted  the  gun  as 
safe  and  made  by  a  certain  maker,  whereas  lie  knew  that  it  was  unsafe  am! 
by  an  inferior  maker. — the  Court,  after  verdict  for  the  plaintiff,  held 
that  the  action  was  maintainable,  not  upon  the  contract  of  warranty, 
which  was  made  with  a  third  person,  hut  on  the  ground  that  the  de- 
fendant, having  sold  the  gun  for  the  purpose  of  being  used  by  the  plain- 
tiff, and  having  intended  the  plaintiff  to  use  it  (as  he  did)  upon  the 
representation,  which  the  defendant  made  knowing  it  to  he  untrue,  that 


528  ACTION    (RIGHT    OF). 


No.  1.  —  Ashby  v.  White.  -  -  Notes. 


the   gun    was   safe,  had  been   guilty  of   an   intentional  injury.     Lang- 
rkhje  v.  Levy  (1837),  2  M.  &  W.  519,  6  L.  J.  Exch.  317. 

Where,  by  statute,  a  duty  is  expressly  imposed  upon  one  person  for  the 
benefit  of  another  class  of  persons,  an  action  lies  for  breach  of  the  stat- 
utory duty,  at  the  suit  of  a  member  of  the  latter  class  who  has  suffered 
damage  from  the  breach;  and  this,  although  the  Act  imposes  a  penalty, 
recoverable  by  a  common  informer,  as  a  specific  punishment  for  the 
breach  of  the  duty  as  to  the  public.  Couch  v.  Steel  (1854),  3  El.  & 
Bl.  402,  23  L.  J.  Q.  B.  121.  The  duty  in  question  was  the  duty  under 
the  Act  of  that  time  relating  to  merchant  seamen  (7  &  8  Vict.  c.  112). 
by  the  38th  section  of  which  it  is  enacted  that  cwvy  ship  on  a  foreign 
vo}-age  shall  be  supplied  with  certain  medicines;  and  the  action  was 
brought  against  the  shipowner  by  a  seaman,  alleging  (by  the  second 
count  of  his  declaration)  a  breach  of  this  duty  by  the  defendant  and 
consequent  loss  of  health  to  the  plaintiff.  The  case  was  argued  on  de- 
murrer; and  Lord  Campbell's  judgment  is  instructive  upon  the  general 
principle  of  liability.  "The  enactment,"  he  says  (3  El.  &  Bl.  p.  411  |, 
"provides  a  benefit  for  the  seamen;  and  thereby  the  plaintiff,  being  n 
seaman  on  board,  was  deprived  of  that  benefit  and  his  health  was  in- 
jured. The  general  rule  is,  that  'where,  a  man  has  a  temporal  loss  or 
damage  by  the  wrong  of  another,  he  may  have  an  action  upon  the  case, 
to  be  repaired  in  damages.'  Com.  Dig.  Action  upon  the  Case  (A). 
The  Statute  of  AVestm.  2  (13  Ed.  1.  Stat.  1,  c.  50)  gives  a  remedy  by 
action  on  the  case  to  all  who  are  aggrieved  by  the  neglect  of  any  duty 
created  by  statute.  See  2nd  Inst .  486.  And  in  Com.  Dig.  Action  upon 
Statute  (F)  it  is  laid  down  that,  '  in  every  ease  where  a  statute  enacts, 
or  prohibits  a  thing  for  the  benefit  of  a  person,  he  shall  have  a  remedy 
upon  the  same  statute  for  the  thing  enacted  for  his  advantage,  or  for  the 
reeompenee  of  a  wrong  done  to  him  contrary  to  the  said  law.1  There- 
fore the  simple  enactment  requiring  the  supply  of  medicines  would 
have  entitled  the  plaintiff  to  an  action,  in  the  same  manner  as  if  the 
obligation  had  been  imposed  by  the  common  law,  or  had  been  expressly 
included  in  the  ship's  articles."  The  learned  Judge  then  considers  the 
question  raised  by  the  circumstance  that  a  penalty  is  imposed,  by  the 
same  section,  upon  the  owner  of  the  ship  for  not  keeping  a  supply  of 
medicines,  and  comes  to  the  conclusion  that,  as  this  penalty  is  recover- 
able at  the  suit  of  the  common  informer  for  the  benefit  of  himself  and  a 
seamen's  hospital,  and  not  for  the  benefit  of  the  individual  injured  by 
the  breach  of  duty,  this  clause  does  not  take  away  the  plaintiff's  com- 
mon-law right  to  maintain  an  action  on  the  case  for  the  special  damage 
sustained  by  him  through  the  breach  of  the  public  duty  created  by  the 
statute. 

Whether  the  principle  thus  laid  down  by  Lord  Campbell  in  Couch 


SECT.  I.  —  COMMENSURATE   WITH    INJURY.  529 

No.  1.  —  Ashby  v.  White.  —  Notes. 

v.  Steel  is  not  too  wide  lias  been  questioned  by  theCourt  of  A.ppeal  in 
Atkinson  v.  Newcastle,  &c.  Waterworks  Co.  (1877),  2  Ex.  1).  441 ;  46  L. 
J.  Exch.  77.">.  And  the  Court  of  Appeal  refused  to  apply  it  so  as  to  give 
a  right  of  action  to  a  plaintiff  who  claimed  compensation  on  the  burn- 
ing down  of  his  promises  in  consequence  (as  he  alleged)  of  the  Water 
Company  failing  in  their  statutory  duty  to  maintain  lire  plugs  with 
pipes  charged  under  a  certain  pressure.  The  real  criterion,  doubtless, 
is  whether  the  primary  intention  of  the  statute  is  the  benefit  of  the  indi- 
vidual <>r  the  protection  of  the  public. 

In  an  action  brought  for  a  false  and  malicious  publication,  consisting 
of  an  untrue  statement  intentionally  published  in  a  newspaper  about 
the  plaintiff's  business,  tending  in  its  natural  consequence  to  produce, 
and  actually  producing,  loss  of  business  to  the  plaintiff,  —  the  acl  done 
with  the  intention  to  injure,  and  damage  resulting,  is  the  gist  of  the 
action;  and,  although  the  statement  is  not  per  se  actionable  as  a  libel, 
and  no  special  damage  in  the  sense  of  loss  of  particular  customers  is 
proved,  evidence  of  a  general  loss  of  business  is  admissible,  and  suffi- 
cient to  support  the  action.  Ratcliffe  v.  Era  us  (C.  A.  from  Q,  B.  1  >. 
1892)  [1892],  2  Q.  B.  T>24;  01  L.  J.Q.  B.  535. 

The  ease  of  Ashby  v.  White  has  been  set  forth  as  the  ruling  case  on 
the  general  principle  ubi  jus  i/>i  rernedium,  and  the  cases  already  noted 
have  been  selected  for  their  application  to  the  general  principles,  apart 
fr .tm  the  special  subject-matter  of  the  ruling  case.  The  following  notes 
relate  to  the  special  subject  of  actions  against  returning  officers.  il  is 
to  he  observed  that,  in  the  declaration  in  Ashby  v.  White,  malice  —  that 
is  to  say,  the  intention  to  deprive  the  plaintiff  of  the  franchise  to  which 
the  defendant  knew  he  was  entitled  —  was  clearly  laid  as  entering  into 
the  gist  of  the  action ;  but  this  point  is  ignored  in  the  original  judg- 
ment of  HolT,  C.  J.,  both  as  reported  by  himself  and  in  the  longer 
report  of  Lord  1v.vvmo\i>.  The  more  considered  argument,  however, 
as  prepared  for  the  committee  of  the  House  of  Lords,  sufficiently  shows 
that  this  point  was  not  lost  sight  of  in  the  reasons  as  there  finally 
settled. 

In  a  later  case  of  Oullen  v.  Morris  (1819),  2  Stark.  .">77,  where 
an  action  was  brought  against  the  high-bailiff  of  Westminster  for 
refusing  the  plaintiff's  vote  at  a  contested  election,  it  was  clearly 
laid  down  by  Abbott,  C.  J.,  that  an  action  is  not  maintainable  for 
merely  refusing  the  vote  of  a  person  who  appears  afterwards  to  have 
really  had  a  right  to  vote,  unless  it  also  appears  that  the  refusal  re- 
sulted from  a  malicious  and  improper  motive;  and  that,  if  the  defendant 
has  acted  honestly  and  uprightly  according  to  the  best  of  his  judgment, 
he  is  not  answerable  in  an  action  of  damages.  The  learned  Judge  fur- 
ther obsei-ved  that  the  returning  officer  is  to  a  certain  degree  a  minis- 
vol.  i.  —  34 


530  ACTION    (RIGHT    OF). 


No.  1.  —  Ashby  v.  White.  —  Notes. 


terial  one,  but  he  is  not  so  to  all  intents  and  purposes;  neither  is  he 
wholly  a  judicial  officer:  his  duties  are  neither  entirely  ministerial  nor 
wholly  judicial,  they  are  of  a  mixed  nature.  He  also  pointed  out  that 
in  the  case  of  Ashby  v.  White  the  record  was,  after  verdict,  conclusive 
upon  the  question  of  malice. 

In  Tozer  v.  Child  (1857),  7  El.  &  15.  377 ;  26  L.  J.  Q.  B.  142,  — an 
action  against  a  churchwarden  presiding  at  an  election  of  vestrymen 
who  refused  the  plaintiff's  vote,  —  there  was  a  decision  of  the  Ex- 
chequer Chamber,  affirming  a  judgment  of  the  Queen's  Bench,  in  favour 
of  the  defendant.  The  ruling  of  Abbott,  C.  J.,  in  Callen  v.  Morris, 
was  cited  at  length  and  approved. 

In  England  the  position  of  returning  officers  has  been  much  altered 
by  statutory  enactments  which  throw  upon  them  definite  ministerial 
duties.  Thus,  by  G  &  7  Vict.  c.  18,  §  81,  the  returning  officer  is  pre- 
cluded from  any  inquiry  at  the  time  of  election  except  as  to  the 
identity  of  the  voter  with  the  person  on  the  register,  and  whether  he 
has  already  voted;  and,  by  §  82,  is  prohibited  from  rejecting  any  vote 
tendered  by  a  person  whose  name  is  on  the  register,  except  by  reason  of 
its  appearing  on  putting  the  above  questions  that  he  is  not  the  person 
whose  name  is  on  the  register,  or  that  he  has  already  voted.  And  by  the 
Ballot  Act,  1872  (35  &  36  Vict.  c.  33,  §§  8,  28,  and  first  schedule)  fur- 
ther enactments  and  rules  are  laid  down  for  the  guidance  of  these  officers. 
In  a  case  depending  on  the  former  of  these  Acts,  the  plaintiff,  after 
succeeding  in  having  a  demurrer  overruled,  ultimately  failed,  by  reason 
that  he  was  not  entitled  to  lie  on  the  register,  or  to  vote ;  so  that,  although 
the  returning  officer  might  be  liable  to  a  criminal  prosecution  for  neglect 
of  a  public  duty  under  the  82nd  section,  the  rejection  of  the  vote  was 
not  an  infringement  of  any  right  of  the  plaintiff.  Pryce  v.  Belcher 
(1846,  1847).  3  C.  B.  38;  4  C.  B.  806;   16  L.  J.  C.  I*.  264. 

The  judgment  of  the  Common  Pleas  in  Pickering  v.  James  (1873). 
L.  R.,  8  C.  P.  481);  4L'  L.  J.  0.  P.  217,  is  an  express  decision  that 
where  the  duty  is  purely  ministerial,  as  the  Court  thought  the  duties 
under  the  latter  statute  to  be,  an  action  will  lie  at  the  instance  of  a 
party  aggrieved  by  a  breach  of  it  without  any  allegation  of  malice.  As 
authorities  for  this  decision  were  cited  Schinotti  v.  Bumsted  .(17(.M*>), 
6  T.  P.  646,  where  an  action  was  held  maintainable  against  the. com- 
missioners under  the  Lottery  Act  (33  Geo.  2  c.  62),  for  not  awarding  a 
prize  to  the  holder  of  the  ticket  entitled  to  receive  it. 

There  is  no  right  in  a  person  desirous  of  petitioning  the  House  of 
Commons  to  compel  any  particular  member  of  the  House  to  present  his' 
petition;  and  no  action  will  lie  against  a  member  of  the  House  refus- 
ing to  present  such  petition.  Chaffers  v.  Goldsmid  (1893;,  1894,  1  Q. 
B.  186. 


SECT.  I.  —  COMMENSURATE    WITH    [NJURY.  531 

No.  1.  —  Ashby  v.  White.  —  Notes. 


AMERICAN   NOTES. 

The  doctrine  of  the  principal  case  is  apparently  sustained  by  the  weighl  of 
authority  in  this  country. 

It  was  early  held,  in  Massachusei  ts,  that  a  seleci  man  w  ho  denies  to  a  ci1  izen 
his  right  of  voting  is  answerable  in  an  action  of  damages.  Capen  v.  Foster, 
12  Pickering  (Mass.),  485;  23  Am.  Dec.  632;  Lamed  v.  Wheeler,  111)  Massa- 
chusetts, 390;  54  Am.  Rep.  483. 

But  it  has  been  held  generally  that  election  officers  are  not  liable  for  an 
honest  mistake  in  the  exercise  of  a  lawful  judgment,  and  fraud  or  malice  or 
•corruption  on  their  part  is  essential  to  the  maintenance  of  the  action.  Jenkins 
v.  Waldron,  11  Johnson  (Xew  York),  114  ;  (i  Am.  Dec.  359,  citing  the  princi- 
pal case,  Harman  v.  Tappenden,  1  East,  555;  and  followed  in  Goetcheus  v.  .!/<//- 
thewson,  58  Barbour,  152;  Patterson  v.  D'Auterive,  6  Louisiana  Annual.  467; 
-51  Am.  Dec.  564;  Morgan  v.  Dudley,  18  13.  Monroe  (Kentucky).  693 ;  68  Am. 
Dec.  735;  Bevard  v.  Hoffman,  18  Maryland,  47!) ;  81  Am.  Dec.  618,  citing  and 
•disapproving  the  principal  case  from  2  Lord  Raymond,  and  also  Lincoln  v. 
Hapgood,  11  Massachusetts,  350,  observing:  "When  the  act  in  question  is 
that  of  a  judicial  officer,  all  that  the  law  can  secure  is  a  guaranty  that  they 
shall  not  with  impunity  do  wrong  willfully,  fraudulently,  or  corruptly ;  .  .  . 
for  an  error  of  judgment  they  are  not  liable."  To  the  same  effect,  Raynsford 
v.  Phelps,  43  Michigan,  342;  Chrisman  v.  Bruce,  1  Duvall  (Kentucky).  63;  85 
Am.  Dec.  603,  quoting  Lord  Holt's  remarks  on  the  value  of  the  right  to  vote, 
from  the  principal  case  in  2  Lord  Raymond;  Curler  v.  Harrison,  5  Blackford 
(Indiana),  138;  Pike  v.  Megoun,  41  Missouri,  491  ;  Weckerly  v.  Geyer,  11  Ser- 
geant &  Rawle  (Penn.).  3!i ;  Pail.  v.  Potts,  8  Humphrey  (Tennessee),  225. 

M\  Throop,  the  latest  writer  on  this  subject  (Public  Officers,  §  7LS).  says  : 
■"  But  in  the  absence  of  any  statutory  restriction  upon  the  right  of  action,  the 
better  opinion  appears  to  be,  although  the  cases  are  not  harmonious,  that 
inspectors  of  election,  selectmen,  judges  of  election,  or  other  officers  control- 
ling the  reception  or  rejection  of  the  votes,  are  liable  to  an  action  by  a  qualified 
voter  for  rejecting  his  vote,  if  he  has  taken  the  prescribed  oath  and  answered 
such  questions  as  the  statute  allows  them  to  put  to  him,  and  otherwise  complied 
with  the  statutory  regulations  as  to  registry,  etc.;  and  this,  not  only  without 
any  allegation  or  proof  of  malice,  but  even  where  they  affirmatively  show  that 
they  acted  honestly  and  in  good  faith."  As  where  they  honestly  refused  the 
vote  on  the  ground  that  the  plaintiff  was  coloured,  whereas  the  evidence  showed 
that  he  was  not ;  Anderson  v.  Millikin,  0  Ohio  State.  568.  And  so  on  the  mis- 
taken ground  that  he  was  a  deserter.  Goetcheus  v.  Mattheioson,  til  Xew  York. 
20,  reversing  58  Barbour,  152.  Mr.  Throop  cites  the  principal  case,  and.  to 
the  same  effect,  Spragins  v.  Houghton,  3  Illinois.  377;  Dernier  v.  Russell, 
81)  id.  fit);  Gillespie  v.  Palmer,  20  Wisconsin,  544;  Murphy  v.  Ramsey,  111 
U.S.  1.1. 

The  doctrine  of  the  principal  case  in  the  lower  court,  was  not  accepted  in 
Maryland.  In  Anderson  v.  Baker,  23  Maryland,  621,  the  Chief  Justice  ob- 
served :    "  Ashby  v.  White  and  Lincoln   v.  Hapgood.   11    Massachusetts,  wen; 


ACTION    (RIGHT    (»F). 


No.  1.  —  Ashby  v.  White.  —  Notes. 


reviewed  and  overruled  in  Bevard  v.  Hoffman,  18  Md.  Rep.  483.  In  that  case 
this  court  said  :  '  The  decisions  in  those  cases  assert  the  principle  that  a  party 
who.  like  the  plaintiffs,  has  been  deprived  of  a  right,  is  thereby  injured,  and 
must  have  his  remedy.  It  seems  to  us  that  the  error  of  the  application  of  that 
principle  to  this  case  consists  in  misapprehension  of  what  is  the  right  of  a 
citizen  under  our  election  laws.  In  one  sense  if  he  is  a  legal  voter,  he  has 
the  right  to  vote,  and  is  injured  if  deprived  of  it ;  hut  the  law  has  appointed  a 
means  whereby  his  right  to  vote  is  decided,  and  for  that  purpose  has  provided 
judges  to  determine  that  question,  and  has  also  provided  the  most  careful 
guarantees  for  a  proper  discharge  of  duty  by  the  judges,  by  the  mode  of  their 
selection  and  their  oaths  of  office.  .  .  .  When  the  act  in  question  is  that  <  f  a 
judicial  officer,  all  that  the  law  can  secure  is  a  guarantee  that  they  shall  not 
with  impunity  do  wrong  willfully,  fraudulently,  or  corruptly.  If  they  do  so 
act,  they  are  liable  both  civilly  and  criminally;  but  for  an  error  of  judgment 
they  are  not  liable  either  civilly  or  criminally.'  "  ' 

In  Spragins  v.  Houghton,  supra,  it  was  held  that  where  the  citizen  takes  the 
statutory  oath,  the  election  judges  are  bound  to  receive  the  vote:  "They 
have  no  discretionary  power,  for  the  law  is  imperative,"  etc.  This  however 
was  an  action  for  a  penalty  for  wrongfully  receiving  the  vote  of  an  unnatural- 
ised  foreigner. 

In  Bernier  v.  Russell,  supra,  the  rejection  was  on  the  ground  that  the  plain- 
tiff was  a  negro,  whereas  that  was  not  a  ground  of  rejection  under  the  statute. 

In  Jeffries  v.  Ankeny,  11  Ohio.  373,  the  rejection  was  on  the  ground  that  the 
plaintiff  was  a  "coloured  man,"  whereas  he  was  three  quarters  white  and  one 
quarter  Indian.  The  court  relied  on  the  early  Massachusetts  cases  and  (mis- 
takenly) on  Lord  Holt's  views  in  2  Lord  Raymond,  and  was  grounded  on 
the  fact  that  there  was  "  no  other  remedy."  -One  judge  dissented.  In  Stewart 
v.  Southard.  17  Ohio.  403,  an  action  for  wrongfully  admitting  coloured  children 
into  a  public  school,  the  court  held  that  "an  officer  acting  the  scope  of  his- 
duty  is  only  responsible  for  an  injury  resulting  from  a  corrupt  motive,"  and 
distinguished  the  Jeffries  case  on  the  same  ground  of  necessity. 

In  Murphy  v.  Ramsey,  supra,  the  court  said  :  "  If  they,"  the  election  officers. 
"  have  not  the  right  to  exact  an  oath  different  from  that  the  form  of  which  is 
given  in  the  territorial  act.  they  must  otherwise  satisfy  themselves  that  per- 
sons offering  to  register  are  free  from  the  disqualifications  denned  in  the  act  of 
Congress.  In  doing  so  they  are  of  course  required  to  exercise  diligence  and 
good  faith  in  their  inquiries,  and  are  responsible  in  damages  for  rejections 
made  without  reasonable  cause." 

The  question  is  very  learnedly  examined  in  Goetcheus  v.  Matthewson,  supra, 
two  judges  giving  opinions,  in  which  the  principal  case  is  cited.  In  that  case 
the  vote  was  rejected  because  the  plaintiff  had  refused  to  answer  a  question 
not  permitted  by  the  statute  to  be  put  to  him,  and  "  in  this,"  say  the  court. 
"  they  acted  without  authority  and  beyond  their  jurisdiction  ;  and  their  rejec- 
tion of  his  vote  made  them  liable  to  him  for  the  damage  resulting  to  him 
therefrom."  "  They  are  liable  if  they  knowingly  put  a  question  which  they 
have  no  right  to  ask.  There  is,  in  the  circumstances  of  the  present  case,  suf- 
ficient evidence  of  willful  wrong-doing  to  have  been  submitted  to  a  jury." 


SECT.  I. — COMMENSURATE    WITH    INJURY, 


No.  2.  —  Scott  v.  Lord  Seymour.       Rule. 


The  court  also  said:  "We  willingly  adopt,  in  all  such  cases  of  abuse,  the  mas- 
t-uline  expressions  of  Lord  Holt,  in  the  celebrated  case  of  Ashby  v.  White, 
already  referred  to,"  etc.  They  distinguished  Jenkins  v.  Waldron,  supra,  on 
the  ground  that  the  determination  there  was  judicial,  the  plaintiff  being  a 

black,  who  had  no  right  to  vote  except  on  presenting  a  certificate  of  IV loin, 

and  the  defendant  had  judicially  determined  that  the  person  certifying  was 
not,  the  officer  whom  he  assumed  to  be,  —"a  point  in  the  law  of  evidence  on 
which  they  might  fairly  be  held  to  act  judicially."  The  court  disapprove  of 
contrary  dicta  in  People  v.  Pease,  27  New  York,  65,  and  Weaver  \.  Decendorf, 
■1  Qenio,  117. 

Judge  Cooley  sums  up  the  question  thus  (Constitutional  I. imitations, 
p.  (517):  "When  the  law  invests  the  inspectors  with  power  to  pass  upon  the 
■qualifications  of  the  electors,  they  exercise  judicial  functions  in  sodoing,  and 
are  entitled  to  the  sane  protection  as  other  judicial  officers,  and  cannot  be 
made  liable  except  upon  proof  of  express  malice.  When  on  the  other  hand 
their  duties  are  only  ministerial,  they  have  no  discretion  hut  to  obey  the  law 
and  receive  the  vote." 

The  leading  case  is  elaborately  annotated  by  Hare  and  Wallace  in  their 
edition  of  Smith's  Leading  Cases,  vol.  I.,  p.  -122. 


No.    2.  — SCOTT    v.    LORD    SEYMOUR. 
(exch.  and  exch.  oh.  1862.) 

RULE. 

A  British  subject  may  maintain  in  an  English  court  of 
law  an  action  against  another  British  subject  for  assault 
committed  in  a  foreign  country,  although  proceedings  are 
alleged  to  be  pending  in  that  foreign  country  in  respect  of 
the  same. 

Scott  v.   Lord   Seymour. 

32  L.J.  Ex.  61  :  s.  c.  1   II.  &.  ( '.  -_>19. 

The  declaration  alleged  that  the  defendant  assaulted  and  im- 
prisoned the  plaintiff.  The  defendant  pleaded,  in  effect,  as 
follows  :  — 

lost,  except  as  to  the  imprisonment,  —  that  tin1  trespasses 
were  committed  at  Naples,  nut  of  the  jurisdiction  of  this  court;  and 
that  before  the  commencement  of  this  suit,  and  whilst  the  plaintiff 
and  the  defendant  were  resident  tit  Naples, proceedings  were  taken, 
it  the  instance  of  the  plaintiff,  before  the  correctional  judge  there. 


534  ACTION    (KIGHT    OF). 


No.  2.       Scott  v.  Lord  Seymour. 


according  to  the  articles  of  the  penal  procedure  laws  of  that 
country  for  the  said  trespasses;  and  that  according  to  the  laws 
of  the  said  country  and  place  the  defendant  was  not  at  the  time 
of  the  commencement  of  this  suit,  nor  at  the  time  when  the  ties- 
passes  were  committed,  nor  at  any  time  thereafter,  liable  to  he 
sued  by  the  plaintiff  in  any  civil  action  or  other  proceedings  t<» 
recover  damages  for  the  alleged  trespasses  to  which  this  plea  is 
pleaded,  except  those  taken  and  instituted  as  aforesaid  under  the 
laws  aforesaid,  and  which  are  still  pending  and  undetermined  in 
the  said  court   at   Naples. 

Secondly,  except  as  to  the  imprisonment  of  the  plaintiff,  —  that 
the  trespasses  were  committed  at  Naples,  &c. ;  that  penal  proceed- 
ings had  been  taken  there,  and  that,  by  the  laws  of  Naples,  the 
plaintiff  could  not  recover  damages  in  a  civil  action  or  other  pro- 
ceeding in  respect  of  the  trespasses  until  the  defendant  had  been 
condemned  and  found  guilty  of  those  trespasses,  or  some  part 
thereof,  in  the  said  penal  proceedings,  and  which  said  penal  pro- 
ceedings before  and  at  the  time  of  the  commencement  of  this 
suit  were  and  still  are  pending  and  undetermined ;  and  the 
said  defendant  has  not  been  condemned  or  found  guilty  of  the 
offences  and  trespasses,  or  any  part  thereof,  charged  by  such  penal 
proceedings. 

Thirdly,  as  to  the  imprisonment,  to  an  effect  similar  to  the 
second   plea. 

The  plaintiff  demurred  to  these  pleas;  and  also  replied  severally 
to  the  pleas,  that  the  plaintiff  and  the  defendant  were  and  still  are 
liege  subjects  of  our  Sovereign  Lady,  the  Queen  Victoria,  and  sub- 
jects of  Great  Britain  :  and  to  this  replication  the  defendant 
demurred. 

After  argument,  the  Court  took  time  for  consideration;  and,  on 
a  subsequent  day, 

Pollock.  ( '.  P.,  delivered  the  judgment  of  the  Court.  It  is 
concluded  by  authority  that  the  circumstance  of  the  assault 
and  battery  having  been  committed  in  a  foreign  country  is, 
in  itself,  no  impediment  to  an  action  being  maintained  for  it 
here.  Then,  what  is  the  meaning  of  the  first  plea  ?  The  de- 
fendant argued  that  it  means,  Proceedings  to  punish  him.  the 
defendant,  had  been  taken  in  Naples,  and  that  except  those 
proceedings  none  can  there  be  taken,  and  that,  therefore,  none  can 
here  be  taken   to  recover  damages.      Put  we  think  it  means  that 


SECT.  I.  —  COMMENSURATE    WITH    INJURY.  535 


No.  2.  —  Scott  v.  Lord  Seymour. 


proeeedings  have  been  taken  in  the  Neapolitan  court,  and  that 
except  those  proceedings  none  can  there  be  taken.  It'  so,  it  durs 
not  negative  that  those  are  proceedings  in  which  a  compensation 

fur  damages  can  lie  recovered.  We  hold  this  to  he  the  natural 
meaning  of  the  words  of  the  plea,  and  we  are  confirmed  in  thai 
opinion  by  this  :  that  the  argument  of  the  defendant  makes  the 
substance  of  the  plea  to  be,  that  no  civil  action  for  the  wrong 
complained  of  is  maintainable  in  Naples,  and  that  in  respect  of  it 
no  damages  or  compensation  can  be  there  recovered.  If  so,  it 
would  be  easy  to  say  so  in  so  many  words;  and  applying  the  rule 
to  a  reasonable  extent,  that  pleadings  are  to  be  taken  most  against, 
the  pleader,  we  put  the  construction  we  have  done  on  this  plea. 
Then  it  comes  to  this:  that  this  is  a  wrong  for  which  an  action 
would  lie  here,  and  for  which  (as  it  is  not  negatived)  we  must 
assume  an  action  will  lie  in  Naples,  but  in  respect  of  which  pro- 
ceedings are  pending  at  Naples,  at  the  plaintiff's  instance.  This. 
however,  is  no  defence.  It  cannot  be  a  defence  in  bar  of  the 
action.  It  would  be  no  answer,  even  in  abatement  of  the  writ, 
that  an  action  was  pending  here  in  an  inferior  court;  and  how, 
in  law  or  reason,  can  it  be  an  answer,  that  it  is  pending  in  a 
foreign  court,  when  the  action  is  in  no  sense  local?  The  case 
of  Cox  v.  Mitchell,  7  Com.  B.  N.  S.  55 ;  29  L.  J.  C.  P.  33,  is  an 
authority  to  show  that  an  action  pending  abroad  for  a  wrong  is 
no  ground  for  staying  proceedings  in  an  action  here.  The  first 
plea,  therefore,  is  bad. 

The  other  two  pleas  demurred  to  allege,  in  effect,  this:  that  by 
the  law  of  Naples,  until  the  defendant  has  been  criminally  con- 
demned for  the  matters  complained  of,  no  action  can  be  maintained 
against  him  for  damages,  and  that  he  has  not  been  so  condemned. 
These  pleas  assume,  therefore,  that  the  acts  complained  of  are  the 
subject  of  civil  proceedings  in  Naples  to  recover  damages,  but 
that,  as  a  preliminary,  there  must  be  a  penal  proceeding  and  con- 
viction. We.  think  this  furnishes  no  defence.  It  is  a  matter  of 
procedure  which  has  to  be  governed  by  the  lex  fori  The  plain- 
tiffs cause  of  action  is  the  assault  and  battery.  Our  statute  of 
limitations  would  run  from  its  occurrence,  and  it  would  be  strange 
that,  if  the  criminal  proceedings  in  Naples  lasted  for  six  years,  the 
plaintiff  lost  his  remedy  here.  Besides,  if  the  defendant  with- 
draws from  the  jurisdiction  of  the  Neapolitan  tribunals,  we  must 
assume  he  prevents  the  very  proceeding  which   is,  by  their  law. 


530  ACTION    (RIGHT    OF). 


No.  2.  —  Scott  v.  Lord  Seymour. 


necessary  to  perfect  the  plaintiff's  power  to  sue,  and  lie  does  nol 
substitute  another  mode  of  proceeding  criminally  here.  He  would, 
therefore,  by  his  own  act,  deprive  the  plaintiff  of  a  remedy  for  the 
wrong  he  had  done.  Besides,  the  reason  of  the  thing  ceases 
before  our  tribunals.  For  certain  police  and  municipal  purposes 
the  foreign  law  says,  that  when  the  act  complained  of  is  of  a 
criminal  character,  criminal  proceedings  shall  he  taken  lief  ore 
civil;  but  that  neither  is  nor  can  he  a  consideration  with  us. 
Suppose  a  man  here  stole  a  chattel  and  went  to  Xew  York,  would 
it  he  reasonable  that  the  tribunals  there  should  refuse  to  entertain 
a  suit  by  the  owner  of  the  article  against  the  thief  till  there  had 
been  a  prosecution  here?  Before  the  extradition  treaties  such  an 
objection  would  be  obviously  preposterous,  and  is  not  really  less 
so  now.  But  this  is  the  defence  raised  by  the  second  and  third 
pleas  demurred  to,  and  for  the  reasons  we  have  given  we  think 
they  are  bad. 

Judgment  was  accordingly  given  for  the  plaintiff;  and  on  this 
judgment  error  was  brought  in  the  Exchequer  Court. 

Archibald  (C.  Pollock  with  him)  (Dec.  1,  1862)  for  the  plaintiff 
in  error,  the  defendant  below,  repeated  the  arguments  used  in  the 
Court  below,  but  relied  chiefly  upon  the  point  that  the  first  plea 
alleged  that  there  was  no  civil  remedy  by  the  law  of  Naples  for 
such  trespasses  as  those  set  forth  in  the  declaration  ;  and  he  argued 
that  if  such  was  the  law  of  the  place  where  the  trespasses  were 
committed,  no  action  would  lie  in  England  in  respect  of  them.  He 
cited  Mostyn  v.  Fabrigas,  Cowp.  161.  The  Queen  v.  Lesley,  29  Law 
J.  Rep.  (x.  s.)  M.  C.  97.  Dobree  v.  Napier,  2  Bing.  N.  C.  781  ;  s.  c.  5 
Law  J.  Rep.  (n.  s.)  C.  P.  273.  Buron  v.  Denman,  2  Excli.  Rep.  167. 
Ekins  v.  The  East  India  Company,  1  P.  Wms.  395.  Santos  v. 
midge,  8  Com.  B.  Pep.  (x.  s.)861 ;  s.  c.  29  Law  J.  Rep.  (x.  s.)  C.  P. 
348,  and  Cammell  v.  Sewell,  5  Hurl.  &  N.  728;  s.  c.  29  Law  J.  Rep. 
(x.  s.)  Exch.  350. 

Honyman  (Jenkins  with  him)  for  the  defendant  in  error,  the 
plaintiff  below,  was  not  called  upon.  Cur.  adv.  vidt. 

WlGHTMAN,  J.  (Dec.  2.)  We  are  all  of  opinion  that  the  second 
and  third  pleas  in  this  case  are  bad,  and  afford  no  answer  to  the 
action.  They  admit  the  right  to  compensation  for  damages  for 
such  trespasses  as  those  mentioned  in    the  declaration,  but   they 


SECT.  1.  —  COMMENSURATE    WITH    INJURY.  531 


No.  2.  —  Scott  v.  Lord  Seymour. 


state  that  by  the  Neapolitan  law  damages  cannot  be  recovered 
except  by  a  certain  course  of  proceedings  which  have  been  com- 
menced there  but  are  not  concluded.  This  is  an  objection  to 
procedure  merely,  which  must  be  determined  by  the  lex  fori,  and 
not  by  the  lex  loci;  and  the  pleas,  indeed,  in  effect  seem  to  set 
forth  nothing  more  than  procedure  in  a  foreign  country;  they  are, 
therefore,  clearly  not  sustainable.  The  main  argument  for  the 
plaintiff  in  error,  however,  was  founded  on  the  first  plea,  which, 
as  Mr.  Archibald  contended,  asserted  ,that  by  the  law  of  Naples 
no  damages  were  recoverable  in  respect  of  the  alleged  trespasses 
mentioned  in  the  declaration.  My  learned  brethren  are  of  opin- 
ion that  the  plea  does  not  contain  any  averment  that  damages 
might  not  lie  recovered  by  the  law  of  Naples  for  the  alleged 
trespasses  in  some  form  of  proceeding  or  other,  and  that  it  may 
he  taken  as  against  the  defendant  in  the  action  that  the  pleas 
admit  that  they  might  be  recovered ;  and  that,  if  that  be  so,  the 
question  is  one  of  procedure  merely  and  governed  by  the  lex  fori, 
and  that  there  is  nothing  to  oust  the  jurisdiction  of  an  English 
court  to  entertain  an  action  to  recover  damages  in  such  a  case. 
I  agree  with  the  rest  of  the  Court,  if  the  construction  of  the  first 
plea  is  that  which  they  suggest.  But,  speaking  only  for  myself, 
I  go  further,  and  I  am  of  opinion,  if  Mr.  Archibald's  construction 
of  the  plea  be  correct,  and  by  the  law  of  Naples,  as  stated  in  the 
first  plea,  no  damages  are  recoverable  in  any  form  of  procedure 
there,  that  an  action  nevertheless  is  maintainable  in  England  by 
one  British  subject  against  another  for  the  trespasses  mentioned 
in  the  declaration.  The  construction  and  validity  of  a  contract 
may,  as  a  general  rule,  depend  on  the  lex  loci  where  the  contrad 
was  made;  but  the  rules  relating  to  contracts  are  not  applicable 
to  the  present  case.  And  since  the  case  of  Mostyn  v.  Fabrigas, 
supra,  I  am  not  aware  of  any  rule  of  law  that  would  disable  ;i 
British  subject  from  maintaining  an  action  in  this  country,  or  from 
obtaining  damages  against  another  British  subject  for  assault  and 
battery  committed  by  him  in  a  foreign  country,  merely  because 
no  damages  for  such  trespass  were  recoverable  by  the  law  of  that 
foreign  country,  and  without  any  allegation  that  such  trespass  was 
lawful  or  justifiable  in  that  country.  By  the  law  of  England,  an 
action  to  recover  damages  for  assault  and  battery  is  maintainable  ; 
and  whatever  may  be  the  case  as  between  two  Neapolitan  subjects 
or  between  a  Neapolitan  and  an  Englishman,  I  find  no  authority 


538  ACTION    (RIGHT   OF). 


No.  2.  —  Scott  v.  Lord  Seymour. 


for  holding,  even  if  the  Neapolitan  law  gives  no  remedy  for  assault 
and  battery,  however  violent  and  unprovoked,  for  recovery  of 
damages,  that  therefore  a  British  subject  is  deprived  of  his  right. 
I  think  the  first  plea  is  had,  either  on  this  ground,  or  on  thai 
suggested  by  the  rest  of  the  Court,  and  that  the  judgment  there- 
fore should  be  affirmed. 

AVilliams,  J.  I  am  entirely  of  the  same  opinion  as  to  the 
former  part  of  my  Brother  Wightman's  judgment;  and  as  to  the 
latter  part,  it  is  quite  unnecessary  to  express  any  opinion  ;  but  I 
am  desirous  of  saying  that,  as  at  present  advised,  I  am  not  pie- 
pared  to  assent  to  it. 

Cromptox,  J.  I  think  it  is  not  necessary  at  all  to  decide  the 
latter  and  more  important  question  in  this  <  ase,  as  to  whether  the 
rule  of  law  be  as  my  Brother  AVightman  has  propounded  it.  I 
think  it  a  matter  of  very  great  difficulty  and  doubt,  and  I  do  in  it 
wish  to  express  any  opinion  upon  that,  because  I  think  the  case 
may  lie  properly  decided  on  the  other  ground.  Looking  at  the 
pleas,  I  take  the  view  which  the  majority  of  the  Court  take,  that 
they  do  not  sufficiently  aver  that  no  compensation  was  recoverable 
by  the  law  of  Naples  for  these  trespasses.  We  can  hardly  suppose 
that  there  could  be  any  such  barbarous  law,  and  I  believe  that 
there  is  not  any  such  law.  It  is  very  lamentable  that  by  the  loose 
mode  of  pleading  that  has  been  so  much  adopted  in  the  present 
day,  a  party  can  plead  in  such  a  way  that  he  can  almost  say  his 
pleas  mean  either  one  thing  or  another.  Looking,  however,  merely 
at  this  first  plea,  I  think  it  does  not  show  that  no  compensation 
is  to  be  recoverable.  It  avers  that  before  a  particular  magistrate 
at  Naples  a  suit  was  commenced,  the  magistrate  "  having  juris- 
diction in  that  behalf  for  the  said  trespass  in  the  declaration 
mentioned."  One  would  suppose  from  that,  that  it  meant  he  had 
jurisdiction  over  the  whole  matter.  Then  it  goes  on  to  say,  that 
the  defendant  is  not  liable  to  be  sued  by  the  plaintiff  "in  any 
civil  action  or  other  proceeding  to  recover  damages  for  the  alleged 
trespasses."  Now,  whether  this  allegation  means  that  the  defen- 
dant was  not  liable  to  be  sued  in  any  civil  action  or  other  civil 
proceeding  may  be  doubtful.  If  it  means  civil  action  or  proceeding 
in  contradistinction  to  the  original  criminal  proceeding,  that  would 
lie  no  answer,  because  it  would  admit  that  the  plaintiff  might 
recover  the  damages  before  the  magistrate  under  the  penal  pro- 
cedure laws.     Then  it  goes  on  to  say:   "Nor  liable   to  any  other 


SECT.  I.  —  COMMENSURATE    WITH    INJURY.  539 

No.  2.  —  Scott  v.  Lord  Seymour. 

proceedings  to  recover  damages  for  the  alleged  trespass  to  which 

this  plea  is  pleaded,  except  those  taken  and  instituted  as  afore- 
said under  the  laws  aforesaid."  Construing  the  allegation  fairly,  and 
not  supposing  that  there  would  be  any  such  barbarous  law,  thai 
a  man  however  assaulted  is  not  to  recover  any  compensation,  1 
think  we  must  assume  that  the  plea  means  that  except  in  the 
course  resorted  to  there  is  no  means  to  get  any  compensation, 
which  is  admitting  that  it  may  he  got  in  that  form.  On  this  con- 
struction it  becomes  a  question  of  procedure,  and  on  that  ground 
I  agree  that  the  judgment  should  be  affirmed. 

YVilles,  J.  I  entirely  concur  with  the  opinion  of  the  other 
members  of  the  Court  as  stated  by  my  Brother  Wightman  in  his 
judgment.  With  respect  to  what  our  decision  ought  to  hi',  if  the 
construction  of  the  plea  were  not  that  which  my  Brother  Wight- 
man  put  shortly,  I  need  not  express  any  opinion.  1  am  very  far 
from  saying  that  I  differ  from  anything  that  my  Brother  Wight- 
man  has  said  in  that  part  of  his  judgment.  Certainly.  1  entirely 
concur  in  the  judgment  of  the  Court  as  expressed  by  him.  constru- 
ing the  plea,  as  I  construe  it,  to  he  a  plea  which  docs  not  state 
that  there  is  any  positive  law  at  Naples  against  the  recovery  of 
damages  for  an  assault. 

Blackbuisn,  J.  I  also  agree  in  the  judgment  for  the  plaintiff. 
Construing  the  first  plea  as  I  do,  it  amounts  merely  to  this:  that 
by  the  law  of  Naples  the  royal  Judge  of  the  Court  of  tin;  Circuit 
-of  Chiaja,  in  Naples,  had  exclusive  jurisdiction  over  all  suits  for 
personal  trespass,  whether  criminal  or  civil,  and  that  a  suit  was 
still  pending  in  his  couxC  Construing  it  as  amounting  to  that, 
and  1  think  it  amounts  to  no  more,  I  think  it  is  merely  procedure, 
and  that  the  plea  does  not  show  that  the  substance  of  the  cause 
of  action  was  by  the  foreign  law  no  cause  of  action  at  all.  Taking 
that  plea  in  that  light,  I  think  that  it  is  had.  As  to  the  rest  of 
the  matter,  supposing  the  plea  had  said  that  no  damages  were 
recoverable  by  the  Neapolitan  law,  that  would  raise  a  question  on 
which  my  mind  is  far  from  made  up  at  present.  I  doubt  very 
much  whether  it  would  be  a  good  bar.  I  am  not  sure  it  might 
not  he  :  but  I  say  nothing  further  about  it.  But  supposing  it  were  a 
good  bar,  I  cannot  think  that  the  fact  of  the  parties  being  British 
subjects  made  any  difference  at  all.  As  at  present  advised,  1  think 
that  when  two  Britons  go  into  a  foreign  country,  they  owe  local 
allegiance  to  the  law  of  the  country,  and  are  just  as  much  governed 


540  ACTION   (right  of). 


No.  2.  —  Scott  v.  Lord  Seymour.  —  Notes. 


by  that  law  a.s  foreigners.  That  point  is  not  at  present  raised,  ane? 
I  think  it  is  not  necessary  to  say  anything'  more  than,  as  at  pres- 
ent advised,  I  think  the  judgment  should  he  affirmed. 

Judgment  affirmed. 

ENGLISH   NOTES. 

Upon  the  main  point,  that  a  British  subject  may  maintain  an  action 
in  a  .Superior  Court  of  law  in  England  against  another  British  subject, 
for  assault  committed  in  a  foreign  country,  the  leading  case  usually 
cited  is  Mostyn  v.  Fabrif/as,  K.  B.  1775,  1  Sm.  L.  Cas. ;  Cowper  161. 
The  action  was  one  of  trespass  and  false  imprisonment,  committed  by 
the  defendant  on  the  plaintiff  in  the  island  of  Minorca.  There  was  ;t 
plea,  1st,  of  not  guilty;  and  I'ndly,  a  justification  on  the  ground  that 
the  defendant  was  governor  of  the  island,  and,  in  order  to  preserve  the 
peace  and  government  of  the  island,  had  laid  hands  on  the  plaintiff,  who 
was  raising  a  disturbance  there,  and  after  detaining  him  for  a  few  days 
deported  him  from  the  island.  The  replication  denied  these  causes  of 
the  defendant's  doings.  There  was  a  verdict  for  the  plaintiff  upon 
both  issues.  It  appeared  on  the  evidence  that  the  district  of  the  island 
within  which  the  question  arose  was  under  the  immediate  order  of  the 
governor,  and  that  the  judges  who  exercise  authority  in  the  rest  of  the 
island  cannot  act,  nor  can  process  be  executed,  in  this  district  but  by 
the  governor's  leave.  It  also  appeared  on  the  evidence  that  the  gover- 
nor had  caused  the  plaintiff  to  be  seized,  imprisoned,  and  banished 
without  any  probable  cause.  The  case  having  been  brought  before  the 
King's  Bench  mi  a  Bill  of  Exceptions,  the  judgment  was  delivered  by 
Lord  Mansfield.  After  disposing  of  an  objection  that  the  plaintiff 
was  a  native  of  Minorca  by  saying  that  there  never  "  could  exist  a 
doubt  but  that  a  subject  born  in  Minorca  had  as  good  a  right  to  appeal 
to  the  King's  Courts  of  Justice  as  one  who  is  born  within  the  sound  of 
Bow  Bells,"  he  said:  "The  two  other  grounds  (of  objection)  are.  1st. 
That  the  defendant,  being  governor  of  Minorca,  was  answerable  for  no 
injury  whatsoever  done  by  him  in  that  capacity;  2ndly,  That  the  injury 
being  done  at  Minorca,  out  of  the  realm,  is  not  cognisable  by  the  King's 
Courts  in  England."  Upon  the  first  point  Lord  Mansfield  said: 
"  The  defendant,  if  he  has  any  justification  for  an  act  of  this  kind,  must 
plead  it.  .  .  .  In  every  plea  to  the  jurisdiction  you  must  state  another 
jurisdiction,  .  .  .  and  in  every  case  to  repel  the  jurisdiction  of  tlie- 
King's  Court  you  must  show  a  more  proper  and  more  sufficient  jurisdic- 
tion; for,  if  there  is  no  other  mode  of  trial,  that  alone  will  give  the 
King's  Courts  a  jurisdiction."  He  summed  up  on  this  branch  of  the 
argument  by  saying:     "  To  lay  down    in   an    English  Court  of  Justice- 


SECT.  I.  —  COMMENSURATE    WITH    INJURY.  541 


No.  2.       Scott  v.  Lord  Seymour.       Notes. 


such  :i  monstrous  proposition  as  that  a  governor,  acting  by  virtue  of 
ietters-patenl  under  the  ureal  seal,  is  accountable  only  to  God  and  his 
conscience;  that  he  is  absolutely  despotic,  and  can  spoil,  plunder,  and 
affect  His  Majesty's  subjects  both  in  their  liberty  and  property  with 
impunity,  is  a  doctrine  that  cannot  be  maintained."' 

Upon  the  latter  objection,  that  the  injury  was  dune  out  <>t'  the  realm. 
Lord  Mansfield's  argument  is  mainly  directed  to  the  formal  rules 
■which  then  existed  as  to  the  place  <>f  trial  or  venue  of  an  act  inn.  In 
■effect  he  showed  that,  apart  from  the  substantial  distinction  between  a 
proceeding  in  rem  (such  as  an  ejectment)  and  other  actions,  there  was 
ji  formal  distinction  between  actions  which  were  termed  transitory  and 
local  actions.  In  the  latter,  such  as  actions  of  trespass  to  land,  the 
Venue  must  be  laid  in  the  county  where  the  hind  hiy.  In  the  former. 
the  place  was  immaterial,  and  the  venue  might  be  laid  anywhere;  and. 
if  the  cause  of  action  happened  abroad,  and  it  became  necessary  to  state 
the  place  in  the  declaration,  the  mode  had  been  adopted  of  first  stating 
the  place  truly,  ajid  then  adding  under  a  videlicet  the. fictitious  locality, 
*'  in  the  county  of  Middlesex,"  or  any  other  county.  Lord  Mansfield 
proceeded  to  show  that  it  was  well  established  by  precedents  that  the 
fiction  so  stated  could  not  be  traversed,  or  put  in  question;  so  that,  in 
effect,  the  action  was  maintainable  for  the  injury  done  abroad. 

Lord  Mansfield  further  observed  that  actions  had  been  sustained 
even  in  cases  where,  if  the  injury  had  been  done  in  England,  the  action 
Avould  have  been  local;  and  he  cited  an  action  which  had  been  tried 
before  himself,  against  Captain  Gambier,  who,  by  order  of  Admiral 
Boscowen,  had  pulled  down  the  houses  of  some  sutlers  who  supplied  the 
navy  with  spirituous  liquors.  This  had  taken  place  on  the  coast  of 
Nova  Scotia,  where  there  were  no  regular  courts  of  judicature,  and  if 
there  were,  Captain  Gambier  might  never  go  there  again;  and  there- 
fore (as  Lord  Mansfield  had  ruled  in  that  case)  the  reason  of  locality 
in  such  an  action  in  England  did  not  hold.  It  is  now,  however,  settled 
by  decision  of  the  House  of  Lords  that  the  Supreme  Court  of  Judicature 
in  England  has  no  jurisdiction  to  entertain  an  action  to  recover  dam- 
ages for  a  trespass  to  land  situate  abroad.  British  Africa  Co.  v.  Com- 
panhia  de  Mogambique,  H.  L.  Sept.  8,  1893. 

The  history  of  the  fiction  by  which  the  formal  requirement  of 
laying  the  venue  was  satisfied,  is  fully  given  in  the  notes  to  Mostyn 
v.  Fabrigas,  in  Vol.  I.  of  Smith's  Leading  Cases.  The  fiction  is 
now  wholly  abolished  in  England  by  the  rules  under  the  Judica- 
ture Act  (II.  S.  C,  Order  36,  rule  1);  and  the  place  of  trial  is  wholly 
si  matter  of  convenience,  the  plaintiff  having  the  choice  in  the  first 
instance. 


542  ACTION   (right  of). 


No.  2.  —  Scott  v.  Lord  Seymour.  —  Notes. 


The  ruling  of  Lord  Mansfield  upon  the  former  point  in  Mostyn  v. 
Fabrlgas  came  under  discussion  in  the  case  of  Phi/tips  v.  Eyre  (1869,. 
1870,  10  15.  &  8.  1004;  L.  B,,  4  Q.  B.  225;  and  6Q.B.1;  38.  L.  J.  Q. 
B.  113;  40  L.  J.  Q.  B.  28),  where  the  action  arose  out  of  certain  arbi- 
trary proceedings  of  the  governor,  Eyre,  in  the  island  of  Jamaica.  On 
the  first  argument  before  the  Queen's  Bench,  Cockiutrn,  C.  J.  (L.  L\. 
4  Q.  B.  229),  observed:  "No  one  doubts  that  the  law  as  laid  down  by 
Lord  Mansfield  in  Mostyn  v.  Fahrigas  is  correct."  The  main  ques- 
tion, however,  in  Phillips  v.  Pyre  turned  upon  the  effect  of  an  Act  of 
Indemnity,  passed  by  the  legislature  of  the  colony  and  assented  to  by  the 
Crown,  whereby  the  proceedings  in  question  had  been  ''made  and  de- 
clared lawful,  and  confirmed."'  It  was  decided  by  the  Queen's  Bench, 
and  the  decision  affirmed  by  the  Exchequer  Chamber,  that  this  Act  of 
Indemnity  was  well  pleaded  in  bar  to  an  action  in  the  Queen's  Bench 
for  an  assault  and  false  imprisonment  done  in  the  course  of  the  pro- 
ceedings covered  by  the  Act.  The  judgment  of  the  Exchequer  Chamber,; 
delivered  by  Mr.  Justice  Willes,  after  discussing  the  constitutional 
questions  raised  as  to  the  competency  ami  effect  of  the  Colonial  Act  of 
Indemnity,  deals  with  the  question  which,  was  raised,  but  not  decided, 
in  Scott  v.  Seymour;  —  whether,  if  the  damage  complained  (if  is  not 
actionable  by  the  law  of  the  place,  it  can  be  made  the  subject  of  an 
action  for  damages  here.  Upon  this  point  the  law  is  laid  down  in  the- 
judgment  as  follows  (10  B.  &  8.  1044  et  seg.):  "A  right  of  action,, 
whether  it  arises  from  contract  governed  by  the  law  of  the  place,  or 
from  wrong,  is  equally  the  creature  of  the  law  of  the  place,  and  subor- 
dinate thereto.  .  .  .  The  civil  liability  arising  out  of  a  wrong  derives. 
its  birth  from  the  law  of  the  place,  and  its  character  is  determined  by 
that  law.  Therefore  an  act  committed  abroad,  if  valid  and  unquestion- 
able by  the  law  of  the  country  where  it  is  done,  cannot,  so  far  as  civil 
liability  is  concerned,  be  drawn  in  question  elsewhere,  unless  b}'  force 
of  seme  distinct  independent  legislation  superadding  a  liability  other 
than  and  besides  that  incident  to  the  act  itself.  In  this  respect  no* 
sound  distinction  can  be  suggested  between  the  civil  liability  in  respect 
of  a  contract  governed  by  the  law  of  the  place,  and  a  wrong.  ...  As  a 
general  rule,  in  order  to  found  a  suit  in  England  for  a  wrong  alleged  to 
have  been  committed  abroad,  two  conditions  must  be  fulfilled.  First. 
the  wrong  must  be  of  such  a  character  that  it  would  have  been  action- 
able if  committed  in  England.  Therefore,  in  The  Pulley  (1868,  5  Moo. 
P.  C.  K  S.  262;  L.  B,,  2  P.  C.  App.  193;  37  L.  J.  Adm.  33),  the  Ju- 
dicial Committee  pronounced  against  a  suit  in  the  Admiralty  Courtr 
founded  upon  a  liability  under  the  law  of  Belgium  for  collision  caused 
by  the  act  of  a  pilot  whom  the  shipowner  was  compelled  to  employ,  and 


SECT.].  —  COMMENSURATE    WITH    INJURY.  543 


No.  2.       Scott  v.  Lord  Seymour.  —  Notes. 


t'ci  whom,  therefore,  as  not  being  his  agent,  he  was  no1  responsible  by 
English  law.  Secondly,  the  act  must  not  have  been  justifiable  by  the 
law  of  the  place  where  it  was  done.'3  For  this  last  mentioned  condi- 
tion were  cited.  Blad's  Case  {Blad  v.  Bamfield),  1674,  .'>  Swanst.  603. 
604,  arising  out  of  the  seizure  of  a  ship  in  Iceland  waters  under  author- 
ity of  the  Danish  Government;  Dobree  v.  Napier  (C.  1'.  L836),  2  Biug. 
N.  C.  781,  arising  out  of  the  capture  in  Portuguese  waters  of  an  Eng- 
lish ship  breaking  blockade;  and  Reg.  v.  Lesley  (1860),  Bell.  C.  G.  220, 
a  criminal  prosecution  against  a  British  shipowner  for  an  act  done  in 
carrying  out  an  order  of  the  Chilian  Government,  and  which  was  held 
justified  so  far  as  relates  to  what  was  done  within  Chilian  waters.  The 
judgment  proceeded  (10  B.  &  S.  1046):  "As  to  foreign  laws  affecting 
the  liability  of  parties  in  respect  of  bye-gone  transactions,  the  law  is 
clear  that  if  the  foreign  law  touches  only  the  remedy  or  procedure  for 
enforcing  the  obligation,  as  in  the  case  of  an  ordinary  statute  of  limita- 
tions, such  law  is  no  bar  to  an  action  in  this  country;  hut  if  the  foreign 
law  extinguishes  the  right,  it  is  as  much  a  bar  in  this  country  as  if  the 
extinguishment  had  been  by  a  release  of  the  party  or  an  Act  of  our 
own  legislature."  And  for  this  distinction  are  cited  JETuber  v.  Steiner 
(C.  P.  1835),  2  Bing  X.  C.  202;  Potter  v.  Brown  (K.  B.  1804).  5  East, 
124;  7  E.  R.  66o;  and  the  rule  laid  down  by  Lord  Mansfield  in  Bal- 
lantine  v.  Golding.  (cited  by  Lord  Ellenborotjgh,  5  East,  130;  7  R.  \\. 
667)  :  "What  is  a  discharge  of  a  debt  in  the  country  where  it  was  con- 
tracted, is  a  discharge  of  it  everywhere." 

The  principle  of  the  judgment  in  Phillips  v.  Eyre,  above  quoted,  was 
followed  by  the  Court  of  Appeal  in  The  17.  Moxham  (C.  A.  1876), 
1  P.  D.  107;  46  L.  J.  P.  D.  &  A.  17,  where,  in  a  cause  of  damage  insti- 
tuted in  the  Admiralty  Division  against  the  owners  of  a  British  ship  for 
damage  to  a  pier  in  Spain,  the  defendant  was  held  entitled  to  the  ben- 
efit of  the  Spanish  law.  by  which  the  master  and  mariners,  ami  not  the 
owners,  are  liable  for  negligent  navigation. 

In  the  case  of  Cox  v.  Mitchell  (C.  P.  1859),  7  C.  B.  X.  S.  55;  20  L. 
-I.  C  1'.  .">.'!,  which  was  a,  simple  action  for  breach  of  contract,  the  Court 
held  that  tin'  fact  of  the  plaintiff  having  previously  commenced  another 
action,  which  was  still  pending  in  the  United  States,  for  the  same  cause 
of  action,  was  no  bar  to  the  action  in  England. 

The  judgment  of  the  Court  of  Appeal  in  McHenry  v.  Lewis  (1882). 
22  Ch.  D.  31)7;  52  L.  J.  Ch.  325,  corrects  the  too  general  inference 
which  might  have  been  drawn  from  Cox  \ .  Mitchell.  The  principle  is 
enunciated  by  all  the  Judges  of  Appeal,  that  the  court  has  jurisdiction 
in  a  proper  case  to  stay  the  action,  on  the  ground  that  the  double  proceed- 
ings are  vexatious;   and  that  the  court  would  so  interfere,  if  this  weir 


544  ACTION    (RIGHT    OF). 


No.  2.  —  Scott  v.  Lord  Seymour.  —  Notes. 


shown  by  special  circumstances  beyond  the  mere  fact  that  an  action  was 
pending  for  the  same  cause  between  the  same  parties  in  the  foreign 
country;  but  that  the  mere  pendency  of  the  action  is  not  sufficient.  This 
principle  is  fully  recognised  by  the  Court  of  Appeal  in  Peruvian  Guano 
Co.  v.  Bockwoldt  (C.  A.  1882),  23  Ch.  D.  225,  where  the  Court  refused 
a  motion  that  the  plaintiff  might  elect  between  an  English  and  a 
French  action  ;  in  Hynian  v.  Helen  (C.  A.  1883),  L'4  Ch.  I).  531,  where 
the  Court  refused,  pending  an  action  for  an  account  in  England,  to  re- 
strain an  action  in  San  Francisco  for  payment  of  an  amount  alleged  to 
be  due;  and  in  Mutrie  v.  Binney  (C.  A.  1887),  35  Ch.  D.  614,  where 
actions  were  pending  in  the  United  States  and  in  England  in  respect 
of  the  same  partnership  accounts,  but  the  Court  refused  to  interfere 
with  the  English  action  at  the  stage  of  pleading. 

The  principle  laid  down  by  the  court  *in  McHenry  v.  Leicis  was  also 
fully  recognised  in  The  Christianberg  (('.  A.  from  Adm.  Div.  1885,  10 
P.  D.  141  ;  54  L.  J.  P.  I).  &  A.  84),  where  an  action  in  rem  had  been 
commenced  against  a  Danish  vessel  in  an  Admiralty  Court  in  Holland; 
and.  pending  these  proceedings,  the  vessel  was  released  on  security  being 
given  for  compensation  to  be  awarded  by  the  court  in  Holland.  On  the 
vessel  arriving  in  England,  the  plaintiffs  commenced  an  action  in  rem 
against  the  vessel  in  the  English  court  for  the  same  cause.  The  Court 
< if  Appeal  by  a  majority  (Baggallay  and  Fry,  L.  JJ.),  affirming  the 
decision  of  Sir  James  Hannki;.  ordered  the  vessel  to  be  released.  Bag- 
GALLAY,  L.  J.,  laid  down  the  rule  as  established  by  a  series  of  authori- 
ties to  be,  that  where  a  plaintiff  sues  the  same  defendant  in  respect  of 
the  same  cause  of  action  in  two  courts,  one  in  this  country  and  another 
abroad,  there  is  a  jurisdiction  in  the  courts  of  this  country  (1)  to  put  the 
plaintiff  to  his  election;  or  (!')  to  stay  proceedings  in  this  country;  or 
(.">)  to  restrain  the  plaintiff  from  prosecuting  the  proceedings  in  the  for- 
eign country.  That,  according  to  the  rule  in  McHenry  v.  Leicis,  it  is 
■prima,  facie  vexatious  to  sue  the  same  party  in  two  different  actions  in 
two  courts  of  the  United  Kingdom,  but  not  necessarily  so.  where  one  of 
the  actions  is  in  a  foreign  court.  The  ground  on  which  the  decision 
went  was  that  the  security  having  been  given  and  accepted  so  as  to  rep- 
resent the  ship  in  Holland,  and  the  court  there  being  thus  seized  of  the 
litigation  as  well  as  of  the  subject-matter,  it  was  oppressive  and  vexa- 
tious to  institute  the  proceedings  against  the  ship  in  England.  Lord 
Justice  Fry  explicitly  draws  a  distinction  where  the  proceeding  is  in 
rem,  from  the  case  where  there  is  a  simple  action  in  personam  :  and  the 
same  distinction  is  implicitly  involved  in  the  judgments  of  Sir  James 
Haxxkr  and  Lord  Justice  I>a<;uallav.  In  effect,  the  proceedings 
being   in  rem,  and   the    res   or   its    equivalent    being  attached    in    both 


SECT.  I. COMMENSURATE    WITH    INJURY. 


No.  2.  —  Scott  v.  Lord  Seymour.  —  Notes. 


courts,  this  circumstance  presents  the  prima  facie  evidence  of  vexation 
or  oppression,  which  is  wanting  in  the  case  of  a  simple  action  in 
personam. 

AMERICAN   NOTES. 

The  doctrine  of  the  principal  case  prevails  universally  in  this  country. 

Pendency  of  a  suit,  in  a  foreign  court  or  in  a  court  of  the  United  States  is 
not  pleadable  in  abatement  or  in  bar  of  a  proceeding  in  a  State  court,  the  States 
standing  toward  one  another  in  the  relation  of  foreign  states.  Mitchell 
v  Bunch,  2  Paige  Chancery  (New  York),  606;  22  Am.  Dec.  <>(>!);  Trubet  v. 
Alden,  6  Ilun  (New  York  Supreme  Ct.),  78  ;  West  v.  McConnell,  5  Louisiana, 
424;  25  Am.  Dec.  191,  and  note  195,  citing  Salmon  v.  Wootton,  9  Dana  (Ken- 
tucky), -122;  Newell  v.  Netvlon,  10  Pickering  (Mass.),  470;  Yelcerton  v. 
Conant,  18  New  Hampshire,  123  ;  De  Armond  v.  Bohn,  12  Indiana,  607  ;  Smith  v. 
Lathrop,  41  Penn.  State,  326;  McJilton  v.  Loce,  13  Illinois,  48(3;  51  Am.  Dec. 
11!) ;  Humphries  v.  Dawson,  38  Alabama,  199  ;  Drake  v.  Brander,  8  Texas,  351  ; 
Chatzel  v.  Ballon,  3  McCord  (So.  Carolina),  33  ;  Hatch  v.  Spofford,  22  Connec- 
ticut, 485;  58  Am.  Dec.  433.  The  same  is  held  in  Lockwood  v.  Nye,  2  Swan 
(Tennessee),  515;  58  Am.  Dec.  73;  North  Bank  v.  Brown,  50  Maine.  214; 
Lowry  v.  Hall,  2  Watts  &  Sergeant  (Penn.),  129  ;  38  Am.  Dec.  495  ;  Smith  v. 
Lathrop,  44  Penn.  St.  32G  ;  84  Am.  Dec.  448,  citing  the  principal  case,  and 
note,  452  ;  Hyde*  v.  Joyes,  4  Bush  (Kentucky),  464  ;  96  Am.  Dec.  311 ;  O'Reilly 
v.  Ar.  Y.,  cyr.,  R.  Co.,  16  Rhode  Island,  388;  6  Lawyers'  Rep.  Annotated.  719. 

But  this  rule  applies  only  to  actions  in  personam,  and  not  to  actions  in  rem. 
Lowry  v.  Hall,  supra.  As  mortgage  foreclosure,  Gilmour  v.  Ewing,  50  Fed. 
Pep.  656;  or  attachment,  Harney  v.  Gt.  North  R.  Col,  50  Minnesota,  405;  or 
garnishment,  Ahlhauser  v.  Butler,  50  Fed.  Rep.  705. 

In  Grossman  v.  Unicersal  Rubber  Co.,  127  New  York,  34.  it  was  held  that  the 
pendency  of  attachment  proceedings  in  another  State,  and  of  a  suit  in  chan- 
cery in  that  State,  brought  by  the  same  plaintiff  for  the  sequestration  of  de- 
fendant's property  for  the  payment  of  its  debts,  were  available  as  a  plea  in 
abatement,  unless  the  termination  of  such  proceedings  or  their  failure  to 
realise  anything  could  be  shown.  But  the  court  must  have  acquired  jurisdic- 
tion in  the  foreign  proceeding  in  rem  in  order  to  afford  a  basis  for  a  plea  in 
abatement.  So  in  Douglass  v.  Phoenix  Ins.  Co.,  183  NewYork,  209,  it  was 
held  that  where  an  insurance  company  and  its  creditor  both  reside  in  New 
York,  in  which  State  the  debt  originated,  the  pendency  of  an  attachment  suit 
against  such  creditor  by  garnishment  of  the  company  in  a  foreign  State  con- 
stitutes no  defence  to  an  action  on  such  debt  in  New  York  by  such  creditor 
against  the  company,  in  the  absence  of  any  appearance  by  such  creditor  to  the 
attachment  suit,  or  personal  service  of  process  on  him  in  such  Stale.  The 
court  said:  %-The  pendency  of  a  suit  in  personam  in  one  State  is  not.  accord- 
ing to  the  general  rule,  pleadable  in  abatement  of  a  suit  subsequently  com- 
menced in  another  State,  between  the  same  parties,  on  the  same  cause  of 
action,  although  the  courts  of  the  State  where  the  prior  suit  is  pending  had 
complete  jurisdiction.  The  court,  on  application,  may.  in  its  discretion,  grant 
a  continuance  by  reason  of  the  pendency  of  the  iirst  action;  and  a  judgment 
vor..  i.  -  35 


546  action  (right  of). 


No.  2.  —  Scott  v.  Lord  Seymour.  —  Notes. 


once  obtained  in  one  of  the  actions  would,  on  application  of  the  court,  be 
allowed  to  be  set  up  in  bar  of  the  further  prosecution  of  the  other.  But  the 
pendency  of  an  action  in  another  State,  between  the  same  parties,  and  for  the 
same  cause,  does  not,  according  to  the  general  ride,  abate  the  second  suit. 
Bourne  v.  Joy,  9  Johns.  221 ;  Walsh  v.  Durkin,  12  id.  99 ;  Bank  v.  Bonne//,  101 
New  York,  173;  Cook  v.  Litchfield,  5  Sandf.  330.  An  exception  to  this  gen- 
eral doctrine  was  made  in  this  State  in  the  early  case  of  Embree  v.  Hanna,  5 
Johns.  101,  in  respect- to  prior  attachment  proceedings  instituted  in  the  State 
of  Maryland,  under  the  laws  of  that  State,  against  a  debtor  of  a  New  York 
creditor,  by  a  creditor  of  the  latter.  The  New  York  creditor  subsequently 
commenced  an  action  in  this  State  against  his  Maryland  debtor  to  recover  the 
debt,  and  the  defendant  pleaded  in  abatement  the  pendency  of  the  attachment 
proceedings  in  Maryland ;  and  the  plea  was  held  to  be  good,  on  the  ground 
that  the  debtor  might  otherwise  be  compelled  to  pay  the  debt  twice.  But 
attachment  siuts  partake  of  the  nature  of  suits  in  rem,  and  are  distinctly  such 
when  they  proceed  without  jurisdiction  having  been  acquired  of  the  person  of 
the  debtor  in  the  attachment.  Real  and  personal  property  may  be  subjected 
to  seizure  and  sale  for  the  payment  of  debts  of  the  owner,  according  to  the 
laws  of  the  State  or  sovereignty  where  the  property  is,  having  regard  to  the 
fundamental  condition  that  due  process  of  law  shall  precede  the  appropria- 
tion, It  is  undeniable  that  a  State  may  authorise  the  seizure  and  sale,  by 
means  of  appropriate  judicial  proceedings,  of  property  of  non-residents 
within  the  jurisdiction,  for  the  payment  of  their  debts.  There  must  be  notice 
and  an  opportunity  to  be  heard,  either  actual  or  constructive,  in  such  way  and 
form  as  the  law  may  prescribe.  But  no  State  can  subject  either  real  or  per- 
sonal property  out  of  the  jurisdiction  to  its  laws.  It  may,  and  oftan  doe;, 
compel  persons,  through  the  process  and  judgment  of  its  courts,  to  perform 
acts  which  affect  their  title  and  interest  to  property  outside  of  the  limits  of 
the  State.  Having  acquired  jurisdiction  of  the  person,  the  courts  could  com- 
pel observance  of  its  decrees  by  proceedings  in  personam  against  the  owner 
within  the  jurisdiction.  But  it  is  a  fundamental  rule  that  in  attachment  pro- 
ceedings the  res  must  be  within  the  jurisdiction  of  the  court  issuing  the  pro- 
cess, in  order  to  confer  jurisdiction.  Plimpton  v.  Bigelow,  93  New  York,  593." 
And  it  was  held  that  "the  general  rule  is  well  settled  that  the  situs  of  debts 
and  obligations  is  at  the  domicile  of  the  owner."  See  to  the  same  effect, 
Harvey  v.  Great  No.  It.  Co  ,  50  Minnesota,  405;  17  Lawyers'  Rep.  Annotated, 
84,  with  notes.  The  opinion  cites  Embree  v.  Hanna,  supra  ;  Wallace  v.  McCon- 
nell,  13  Peters  (U.  S.  Sup.  Ct.),  136;  Bank  v.  Mini,  99  Massachusetts,  313; 
Baltimore  frc.  R.  Co.  v.  May,  25  Ohio  St.,  347,  and  disapproves  Missouri  Pac. 
R.  Co.  v.  Sharitt,  43  Kansas,  375. 

Contra,  People  v.  Judges,  27  Michigan.  406;  15  Am.  Rep.  195,  where  it  is 
said,  "  the  two  proceedings  must  be  in  all  respects  identical."  That  was  an 
action  for  services  in  fitting  out  a  vessel,  and  it  was  held  not  abated  by  pend- 
ing proceedings  in  rem  in  the  Federal  court  in  another  State. 


SECT.  I.  —  COMMENSURATE    WITH    INJURY.  547 

No.  3.  —  Harrop  v.  Hirst.  —  Rule. 


No.  3.  —  HARROP  v.  HIRST. 
(exch.  1S6S.) 

RULE. 

One  of  a  class  of  persons  enjoying  a  right  may  maintain 
an  action  for  its  infringement,  although  he  has  suffered  no 
individual  damage,  if  the  act  complained  of  is  such  that 
repeated  acts  of  the  kind  would  furnish  evidence  in  deroga- 
tion of  the  risrht. 

O 

Harrop  v.  Hirst. 

38  L.  J.  Ex.  1  (s,  c.  L.  R.  4  Ex.  43). 

The  declaration  stated  that  from  time  whereof  the  memory  of 
man  was  not  to  the  contrary  there  had  been,  and  of  right  ought 
to  have  been,  and  still  ought  to  be,  a  certain  public  water-spout 
in  a  public  highway  called  Kiln  Lane,  within  the  district  of 
Tamewater,  in  the  parish  of  Saddleworth,  in  the  West  Hiding  of 
the  county  of  York ;  and  during  all  the  time  aforesaid  the  water 
of  a  spring  arising  in  a  certain  close,  now  called  the  Wharnton 
Grammar  School  Close,  ran  and  flowed,  and  of  right  ought  to  run 
and  flow,  from  and  out  of  the  said  spring  in  and  along  a  certain 
watercourse,  through  divers  closes  unto  and  into  the  said  spout, 
for  the  supply  of  water  to  the  said  spout  for  the  purposes  therein- 
after mentioned  ;  and  during  all  the  time  aforesaid,  by  an  ancient 
and  laudable  custom  and  usage  of  the  said  district,  the  inhabi- 
tants for  the  time  being  of  the  said  district  residing  therein  and 
occupying  dwelling-houses  situate  and  being  within  the  said 
district  had  been  entitled,  and  still  were  entitled,  to  take,  use,  and 
enjoy  water  from  the  said  spout  for  their  culinary  and  other 
domestic  purposes  to  be  used  in  their  said  respective  dwelling- 
houses  for  the  more  convenient  use,  occupation,  and  enjoyment, 
thereof  respectively  ;  and  the  plaintiff's,  before  and  at  the  time  of 
the  committing  of  the  grievances  by  the  defendant,  as  thereinafter 
next  mentioned,  were  inhabitants  of  the  said  district  and  residing 
therein  and  jointly  occupying  a  dwelling-house  within  the  said 
district,  and  entitled  to  take,  use,  and  enjoy  water,  from  the  said 
spout  for  their  culinary  and  other  domestic  purposes  to  be  used  in 
their  said  dwelling-house    for  fVi  •  >  renient  use,  occupation, 


548  ACTION   (right  of). 


No.  3.  —  Harrop  v.  Hirst. 


and  enjoyment  thereof ;  yet  the  defendant,  well  knowing  the 
premises,  and  contriving  and  intending  to  prejudice  and  aggrieve 
the  plaintiffs  and  other  the  persons  so  entitled  as  aforesaid  respec- 
tively, and  to  deprive  them  respectively  of  the  water  to  which 
they  were  so  respectively  entitled  as  aforesaid,  on  divers  days  and 
times  before  the  commencement  of  the  suit,  wrongfully  diverted 
large  quantities  of  the  said  water  which  ought  to  have  run  and 
flowed,  and  which  otherwise  would  have  run  and  flowed,  in  and 
along  the  said  watercourse  unto  and  into  the  said  spout  for  the 
purposes  aforesaid,  as  such  water  otherwise  would  and  ought  to 
have  done ;  whereby  the  said  spout  became  and  was  on  divers 
days  and  times  imperfectly  and  insufficiently  supplied  with  water 
for  the  purposes  aforesaid,  and  on  divers  other  days  and  times  was 
wholly  deprived  of  water;  and  by  means  of  the  premises  the 
defendant  wrongfully  hindered  and  prevented  the  plaintiffs  from 
taking  from  and  out  of  the  said  spout,  and  using  and  enjoying, 
divers  large  quantities  of  the  said  water  to  which  they  were 
entitled  as  aforesaid,  and  the  plaintiffs  were  thereby  put  to  and 
suffered  and  incurred  great  inconvenience,  loss,  and  expense,  and 
were  much  disturbed  in  the  use,  occupation,  and  enjoyment,  of  the 
said  dwelling-house  for  want  of  the  said  water  for  the  purposes 
aforesaid,  and  to  which  they  were  so  entitled,  and  of  which  they 
were  so  deprived  as  aforesaid,  and  have  been  otherwise  much 
injured  and  damnified. 

Pleas :  The  general  issue,  and  traverses  of  the  essential  allega- 
tions of  right  in  the  declaration.     Issues  thereon. 

The  cause  was  tried,  at  the  Leeds  Summer  Assizes,  1868,  before 
Bramwell,  B.,  and  a  special  jury.  It  appeared  that  the  right 
alleged  in  the  declaration  existed,  and  that  the  plaintiffs  were  in 
occupation  of  a  dwelling-house  within  the  district.  The  defendant 
was  the  occupier  of  a  certain  close  of  land  through  which  the 
water  in  question  flowed  on  its  way  from  the  spring  to  the  spout. 
The  jury  found  that  the  defendant  had  by  various  acts,  extending 
over  some  years,  diverted  water  from  the  spout,  so  as  sensibly  to 
diminish  the  flow  on  various  occasions.  It  was  proved  that  seve- 
ral inhabitants  of  the  district  had  on  various  occasions,  when  the 
flow  was  so  impeded  and  diminished,  been  put  to  inconvenience 
by  failure  to  obtain  water  from  the  spout  on  endeavouring  to  do  so ; 
but  the  jury,  in  answer  to  a  question  from  the  learned  Judge,  said 
that  the  plaintiffs  had  not  individually  sustained  any  loss  capable 


SECT.  I.  —  COMMENSURATE    WITH    [NJURY.  549 


No.  3.  —  Harrop  v.   Hirst. 


of  pecuniary  computation  from  the  want  of  water,  or  anv  inconve- 
nience except  the  trouble  of  complaining  of  the  defendant's  acts 
of  infringement.  Upon  these  findings  the  verdict  was  entered  for 
the  plaintiffs  for  406'.  damages,  and  leave  was  reserved  to  the 
defendant  to  move  to  enter  a  nonsuit,  on  the  ground  that  the 
action  was  not  maintainable  by  the  plaintiffs  without  proving 
actual  damage  to   themselves   personally. 

A  rule  nisi  having  been  accordingly  obtained,  the  question  was 
argued.  In  the  course  of  the  argument,  Martin,  B.,  referred  to 
the  notes  to  Mellm-  v.  Spateman,  1  Wins.  Saund.  346  a,  346  b. 

Judgments  were  delivered  as  follows  :  — 

Kelly,  C.  B.  The  plaintiffs  in  this  case,  in  common  with  the 
other  inhabitants  of  a  certain  district,  claim  a  right  to  a  flow  of 
water  through  a  spout  within  the  district,  for  the  supply  of  water 
in  their  houses  for  domestic  purposes;  and  the  defendant,  who  is 
the  owner  or  occupier  of  land  through  which  the  stream  flows  by 
which  this  spout  is  fed  and  supplied,  has  from  time  to  time 
abstracted  large  quantities  of  water  from  this  stream,  and  has  thus 
diminished  the  quantity  of  water,  so  that  at  times  it  has  been 
insufficient  for  the  supply  of  the  entire  district.  It  does  not 
appear  that  the  plaintiffs  have  individually  sustained  any  incon- 
venience, inasmuch  as  they  do  not  seem  to  have  endeavoured  to 
obtain  water  from  this  spout  at  any  of  the  periods  at  which  the 
supply  had  been  substantially  or  largely  diminished  by  the 
abstraction  of  water  on  the  part  of  the  defendant ;  and  the  ques- 
tion is,  whether,  under  these  circumstances,  an  action  lies  for  the 
infringement  of  the  right  without  —  I  will  not  say  special,  but 
—  without  individual  and  particular  damage  sustained  by  the 
plaintiffs. 

Let  us,  in  the  first  place,  consider  whether  this  injury  to  a  per- 
son possessing,  in  common  with  others,  a  right  of  this  nature,  is 
the  subject  of  an  action.  It  is  clear  from  Coke  upon  Littleton  56  ", 
and  the  other  authorities  cited,  especially  the  case  of  Westbury  v. 
J 'o well,  cited  in  Flneux  v.  Hovenden,  Cro.  Eliz.  664,  Co.  Lit.  56a,  that 
such  action  is  maintainable.  In  the  case  of  Fineux  v.  Hovenden,  ( !ro. 
Eliz.  664,  it  was  held,  by  two  Justices  against  one,  that  the  action 
there  was  not  maintainable,  being  an  action  for  an  injury  done  to 
a  right  of  a  public  nature,  —  a  right  not  confined  to  the  inhabitants 
of  a  district,  but  common  to  the  whole  of  the  subjects  of  the  king. 
In  that  case  the  case  of  Westbury  v.  Powell  was  cited,  and  there  it 


550  ACTION   (right  of). 


No.  3.  —  Harrop  v.  Hirst. 


appears  that  it  was  determined  "  that,  where  the  inhabitants  of 
Southwark  had  a  common  watering-place,  and  the  defendant  had 
slopped  it,  and  the  plaintiff,  being  an  inhabitant  there,  brought 
his  action  upon   the   case,  it  was  adjudged  maintainable." 

Now,  with  respect  to  the  question  whether  this  action  is  main- 
tainable without  particular  damage  to  the  plaintiffs,  certainly  it  did 
not  appear  in  that  case  that  the  plaintiff  had  himself  sustained  any 
particular  damage,  and  he  may  have  been  much  in  the  same  condi- 
tion as  the  plaintiffs  in  the  present  case.  But  when  we  consider 
the  nature  of  the  right  claimed,  and  the  nature  of  the  infringe- 
ment alleged  to  have  occurred  by  the  acts  of  the  defendant,  and 
the  probable  effect  of  such  acts  if  continued  and  repeated,  it  is 
impossible  not  to  see  that  the  effect  might  lie  to  furnish  the  foun- 
dation of  a  claim  to  a  right  to  so  largely  diminish  the  supply  of 
water  to  this  spout  as  to  interfere  with  the  right  of  the  inhabi- 
tants of  the  district,  and  render  it  practically  valueless.  Upon  the 
point  that,  under  such  circumstances,  without  particular  damage, 
an  action  of  this  nature  may  be  sustained,  my  Brother  Martin,  in 
the  course  of  the  argument,  referred  to  the  very  learned  note  of 
Mr.  Serjeant  Williams  to  the  case,  of  Mellor  v.  Spateman,  1  Wins. 
Saund.  346  b,  where,  after  a  reference  to  various  cases  of  this 
nature,  we  find  this  laid  down:  "For  wherever  any  act  injures 
another's  right,  and  would  be  evidence  in  future  in  favour  of  the 
WTono-doer,  an  action  may  be  maintained  for  an  invasion  of  the 
right  without  proof  of  any  specific  injury;  and  this  seems  to  be  a 
governing  principle  in  cases  of  this  kind."  There  are  several 
authorities  for  that  proposition.  I  hold  it  to  lie  an  undeniable 
proposition  of  law,  that  where  there  is  a  right  in  one  man,  and  acts 
have  been  done  by  another,  which  if  continued  would  he  evidence 
of  a  right  in  derogation  of  the  right  claimed,  such  acts  are  the 
subject  of  an  action  by  the  person  entitled  to  the  right  in  question. 
Among  the  authorities  referred  to  was  the  case  decided  in  the 
Common  Pleas  of  Bower  v.  Hill,  2  Sc,  535  ;  s.  c.5  LawT  J.  Rep.  (x. 
s.)  C.  P.  77,  and  at  the  close  of  Chief  Justice  Tindal's  judgment 
we  find  he  expressed  himself  thus  :  "  But  independently  of  this 
narrower  ground  of  decision,  we  think  the  erection  of  the  tunnel 
is  in  the  nature  of  a  natural  easement,  and  is  to  be  considered  as 
a  permanent  obstruction  to  plaintiff's  right,  and  therefore  an 
injury  to  the  plaintiff,  even  though  lie  received  no  immediate 
damage  thereby.     The  right  of  the  plaintiff  to  this  way  is  injured 


SECT.  I.  —  COMMENSURATE    WITH    INJURY.  551 


No.  3.  —  Harrop  v.  Hirst. 


if  there  is  an  obstruction  in  its  nature  permanent.  If  acquiesced 
ia  for  twenty  years,  it  would  be  evidence  of  a  renunciation  and 
abandonment  of  the  right  of  way.  That  is  the  ground  upon 
which  a  reversioner  is  allowed  to  bring  his  action  for  an  obstruction, 
apparently  permanent,  of  lights  and  other  easements  which  belong 
to  the  premises."  Now,  it  is  impossible  to  deny  that  if  this 
defendant,  being  occupier  or  owner  of  land  through  which  the 
stream  of  water  Hows  to  this  spout,  had  from  time  to  time  during 
a  period  of  twenty  years  abstracted  large  quantities  of  water,  and 
had  even  left  this  spout  insufficiently  supplied  with  water  to  meet 
the  exigencies  of  the  inhabitants  for  domestic  purposes,  that  after 
that  lapse  of  time  such  acts  would  constitute  evidence  of  a  right 
in  derogation  of  their  right,  and  which  might  put  an  end  to  all 
practical   possibility    of    the  establishment  of  it  at  law. 

Under  these  circumstances,  I  think,  although  we  must  take  it, 
after  the  rinding  of  the  jury,  that  no  particular  individual  dam- 
age has  been  sustained  by  the  plaintiffs,  an  action  is  nevertheless 
maintainable  by  the  plaintiffs  as  inhabitants  of  the  district  for  the 
invasion  of  the  general  right  of  the  inhabitants  of  the  district  to  a 
supply  of  water  from  this  spout  for  domestic  purposes,  and  1  base 
my  opinion  more  especially  upon  the  grounds  I  have  adverted  to, 
as  expressed  in  the  note  to  the  case  of  Mellor  v.  Spateman,  supra. 

Martin,  B.  I  am  of  the  same  opinion.  I  think  this  case  is 
indisputably  within  the  doctrine  laid  down  in  the  notes  to  Mellor 
v.  Spateman,  supra,  and  I  have  always  thought  that  the  doctrine 
there  laid  down  was  perfectly  correct. 

Bramwell,  B.     I  am  of  the  same  opinion. 

Channell,  B.  I  also  am  of  the  same  opinion.  It  appears  to 
me  that  the  law  is  correctly  laid  down  in  the  proposition  that  has 
been  cited  from  the  notes  to  the  case  in  "Williams's  Saunders, 
and  that  that  proposition  goes  a  long  way  to  determine  the  present 
case.  It  seems  that  where  an  indictment  may  be  maintained  for 
a  common  nuisance,  —  that  is,  for  that  which  is  an  injury  to  all  the 
Queen's  subjects,  —  there  is  no  remedy  by  action  unless  you  can 
prove  individual  damage.  That  is  undisputed  law.  But  I  am 
not  aware  that  the  same  rule  is  applied  where  it  has  not  been  an 
injury  to  the  whole  of  the  public  in  contravention  of  the  law,  but 
an  injury  to  the  inhabitants  of  a  particular  district.  On  the  other 
hand,  it  has  been  conceded,  and  cannot  lie  denied,  and  it  is  laid 
down  in  the  notes  to  Mellor  v.  Spateman,  supra,  that  if  there  is  an 


552  ACTION   (right  of.) 


No.  3.  —  Harrop  v.  Hirst.  —  Notes. 


actual  injury  to  the  right,  that  then  the  action  is  maintainable. 
But  it  is  said  that  here  there  is  an  injury  to  the  right ;  and  it  is 
replied  that  when  the  injury  to  the  right  exists,  there  must  be 
some  proof  of  individual  or  personal  injury  to  the  plaintiff  himself. 
I  take  the  verdict  of  the  jury  to  amount  to  this,  that  there  was 
the  right  existing  and  an  injury  to  that  right  in  point  of  law,  but 
that  it  was  not  attended  with  any  pecuniary  loss,  or  any  extraor- 
dinary expenditure  of  time  or  labour  in  getting  the  water.  It  merely 
comes  to  this,  that  because  the  plaintiff  did  not  want  the  water  on 
this  particular  day,  or  did  not  go  for  it,  or  it  was  supplied  from 
some  other  source,  therefore  pecuniary  loss  or  pecuniary  expendi- 
ture did  not  arise,  and  no  question  in  respect  of  loss  of  time  and 
labour  could  arise.  Now,  it  was  conceded,  as  I  .understand,  that 
in  the  case  of  one  of  the  other  inhabitants  who  did  go  to  the  spout 
on  the  particular  day  in  question  and  found  the  water  abstracted 
by  the  defendant,  and  could  not  therefore  obtain  the  supply  of 
water,  there  would  be  such  damage  or  loss  in  his  case  as  would 
entitle  him  to  maintain  the  action.  It  clearly  follows  from  that 
that  other  persons  than  the  plaintiffs  inhabiting  the  district,  and 
so  entitled  to  this  right  to  the  supply  of  water,  had  their  right 
interfered  with  and  put  in  jeopardy  by  the  acts  of  the  defendant. 
If  so,  then  that  would  be  some  evidence  against  the  plaintiffs  of  a 
right  in  the  defendant  in  derogation  of  their  rights.  If  this  right 
had  been  exercised  for  a  sufficiently  long  period  against  the  will  of 
the  inhabitants  of  the  district,  then  the  plaintiffs,  as  two  of  such 
inhabitants,  might  be  prevented  from  making  good  their  right. 
Therefore  I  think  there  was  here  such  an  invasion  of  the  plaintiffs' 
right  as  entitles  them  to  maintain  this  action,  although  they  sus- 
tained no  personal  damage  or  pecuniary  loss. 

Rule  discharged. 

ENGLISH   NOTES. 

The  principle  of  the  ruling  case  is  so  well  established  as  to  need  little 
comment.  The  note  in  Saunders  referred  to  by  Martin,  B.  (p.  550, 
supra),  is  as  follows:  "  Wherever  any  act  injures  another's  right,  and 
would  be  evidence  in  future  in  favour  of  the  wrong-doer,  an  action  max 
be  maintained  for  an  invasion  of  the  right  without  proof  of  any  specific 
injury."  And  this  rule  is  deduced  from  the  cases  of  Wells  v.  Wailing 
2 Black.  Rep.  1233;  Hobson  v.  Todd,  (1790)  4  T.  B.  71  (2  B,  B,  335); 
and  Pindar  v.  Wadsworth,  (1802)  2  East,  154  (6  B,  B.  412).     In  3f<r- 


SECT.  I.  —  COMMENSURATE    WITH    INJURY.  553 

No.  3   —  Harrop  v.  Hirst.  —  Notes. 

zetti  v.  Williams  (1830),  1  B.  &  Axl.  415,  if  is  observed  by  Taunton, 
J.  (p.  426):  "  Trespass  quare  elavsum  fregit  is  maintainable  for  tin 
entry  on  the  land  of  another,  though  there  be  no  real  damage,  because 
repeated  acts  of  going  over  the  land  might  be  used  as  evidence  of  a  title 
to  do  so,  and  thereby  the  right  of  the  plaintiff  might  be  injured.  So 
an  action  may  bo  maintained  by  a  commoner  for  an  injury  done  to  his 
common,  without  proving  actual  damage."  The  principle  was  applied 
by  the  Court  of  Common  Pleas  in  Bower  v.  Hill  (Ls;i.~>),  1  Bing.  >.'.  ('. 
549,  where  defendants,  having  erected  on  their  own  premises  a  per- 
manent obstruction  to  a  navigable  drain  leading  from  a  riser  through 
defendant's  premises  to  plaintiff's  close,  it  was  held  that  an  action  lay, 
although  the  portion  of  the  drain  which  passed  through  the  plaintiff's 
close  had  for  sixteen  years  been  completely  choked  up  with  mud.  The 
same  principle  is  assumed  and  applied  throughout  the  train  of  cases 
carried  on  in  recent  years  for  the  protection  of  commons,  of  which  the 
case  of  Robertson  v.  Hartopp  (C.  A.  1889),  43  Ch.  D.  484,  59  L.  J.  Ch. 
553,  may  be  taken  as  a  sample.  The  form  of  action  (or  suit  in  those 
cases  was,  in  order  to  obtain  an  injunction,  adapted  to  the  practice  of  the 
Court  of  Chancery,  — one  of  the  injured  class  suing  ''  on  behalf  of  him- 
self and  all  other"'  persons  of  the  class.  The  application  of  this  form  of 
suit  to  this  class  of  cases  was  invented,  and  first  successfully  carried  out 
(with  the  advice  and  concurrence  of  the  leaders  of  the  Bar  from  time  to 
time)  by  Mr.  Phillip  H.  Lawrence,  then  a  solicitor  (since  called  to  the 
bar),  whose  firm  and  their  successors,  Messrs.  Home  &  Hunter,  and 
Home  &  Birkett,  appear  in  the  reports  of  all  the  cases  as  the  solicitors 
of  the  plaintiffs. 

It  will  be  observed  that  in  the  judgment  of  Channell,  B.,  in  the  rul- 
ing case,  it  is  stated  to  have  been  conceded  that,  where  an  indictment 
may  be  maintained,  there  is  no  remedy  by  action  without  proof  of  indi- 
vidual damage.  This  will  appear  hereafter  under  the  ruling  cast  of 
Ricket  v.  Metr.  Ry.  Co.  (No.  7,  infra).  The  distinction  is  that,  in  the 
cases  under  the  above  rule,  the  injury  affects  the  plaintiff,  not  as  one  of 
the  public  generally,  but  as  one  of  a  particular  class  or  section  of 
persons. 

AMERICAN    NOTES. 

The  principal  case  appears  to  have  been  scantily  cited  in  this  country,  and 
in  its  exact  circumstances — the  violation  of  a  quasi-public  customary  right 
in  water,  and  a  recovery  therefor  by  one  of  the  public  class  cut  il  led  to  its 
benefits,  although  he  has  suffered  no  personal  damage  thereby,  on  the  ground 
that  a  continuance  of  the  violation  might  ripen  into  a  prescriptive  right  — we 
do  not  discover  any  American  ease  precisely  parallel  with  it. 

In  Crooker  v.  Bragg,  Hi  Wendell  (New  York).  260;  25  Am.  Dee.  .TV..  Nel- 


5.14  ACTION   (RIGHT  of). 


No.  3.  —  Harrop  v.  Hirst.  —  Notes. 


son,  J.,  observed :  "  A  person  through  whose  farm  a  stream  naturally  flows  is 
entitled  to  have  the  whole  pass  through  it,  though  he  may  not  require  the 
whole  or  any  part  of  it  for  the  use  of  machinery.  Upon  any  other  principle, 
this  right  to  the  stream,  which  is  as  perfect  and  indefeasible  as  the  right  to 
the  soil,  would  always  depend  upon  the  use,  and  a  party  who  did  not  occupy 
the  whole  for  special  purposes  would  be  exposed  to  have  the  same  diverted 
by  his  neighbour  above  him,  without  remedy,  and  which  diversion,  by  twenty 
years'  enjoyment,  would  ripen  into  a  prescriptive  right  beyond  his  control, 
and  thereby  defeat  any  subsequent  use."  The  same  doctrine  of  the  power  to 
vindicate  the  right  against  hostile  prescriptive  acquirement  or  defeat  is  clearly 
declared  in  Amoskeag  M.  Co.  v.  Goodale,  46  New  Hampshire,  53;  Stein  v. 
Burden,  24  Alabama,  130;  GO  Am.  Dec.  453;  Blanchard  v.  Baker,  8  Greenleaf 
(Maine),  253;  23  Am.  Dec.  504;  Ripka  v.  Sergeant,!  Watts  and  Sergeant 
(Penn.),  9;  42  Am.  Dec.  214. 

The  principal  case  is  cited,  with  apparent  approbation,  by  Washburn 
(Easements,  *  570),  but  no  American  cases  are  cited  to  its  doctrine. 

There  seems  to  be  a  conflict  between  the  text-writers.  Gould  (Waters, 
§  214)  cites  it  to  the  point,  that  "  Actual  nominal  damages  need  not  be  shown 
in  order  to  support  an  action  for  any  extraordinary  and  unreasonable  use  of 
the  water  by  a  riparian  owner,  when  the  act  complained  of,  if  continued, 
would  bar  the  plaintiff's  right,  and  nominal  damages  may  be  recovered  in 
order  to  prevent  the  acquisition  of  an  adverse  title  by  prescription.''  "Phis  is 
supported  by  that  author  by  a  great  number  of  American  authorities,  of 
which  it  will  be  sufficient  to  name  the  following ;  Munroe  v.  Slickneg,  48 
Maine,  462  ;  Lund  v.  New  Bedford,  121  Massachusetts,  286;  Crooker  v.  Bragg. 
10  Wendell  (New  York),  260;  25  Am.  Dec.  555;  See/eg  v.  Brush,  35  Con- 
necticut, 424;  Hulme  v.  Shreve,  3  Green  (New  Jersey  Eq.),  116;  Gladfelter 
v.  Walker,  40  Maryland,  1  ;  Graver  v.  Shall,  42  Penn.  St.  58 ;  Dumont  v.  Kel- 
logg, 29  Michigan,  422;  18  Am.  Rep.  102;  Plumleigh  v.  Dawson,  1  Gilinan 
(Illinois).  544;  Stein  v.  Burden,  29  Alabama,  127;  69  Am.  Dec.  394;  Watson 
v.  Van  Meeter,  43  Iowa,  76;  Cory  v.  Silcox,  6  Indiana,  39;  Little  v.  Stanback, 
63  North  Carolina,  285  ;  Chapman  v.  Cope/and,  55  Mississippi,  476  ;  Green  v. 
Weaver,  63  Georgia,  302 ;  Creighton  v.  Evans,  53  California,  55 ;  Smiths  v.  Mc- 
Conathy,  11  Missouri,  517;  Amoskeag  M.  Co.  v.  Goodale,  46  New  Hampshire, 
53;  Haas  v.  Choussard,  17  Texas,  588.  In  many  of  these  cases  the  precise 
point  was  not  decided,  but  their  leaning  is  that  way. 

On  the  other  hand,  Mr.  Bigelow  (Lead.  Cases  on  Torts,  p.  518)  says  :  "  In  gen- 
eral, it  is  probably  true  that  where  a  right  is  exactly  defined,  any  infraction  will 
be  ground  for  an  action  entitling  the  plaintiff  to  nominal  damages  at  least. 
Thus  in  the  case  of  a  right  to  the  possession  of  land,  no  one  can  lawfully  put  foot 
upon  the  soil  of  another  without  permission,  express  or  implied  ;  and  for  every 
infraction  of  this  right  an  action  maybe  maintained,  though  the  owner  of  the 
land  suffered  no  damage  whatever.  Williams  v.  Esling,  4  Barr  (Penn.), 
486.  But  the  right  of  usufruct  in  running  streams  is  incapable  of  any  such 
exact  definition,  and  the  courts  can  only  say  that  where  the  plaintiff  has  sus- 
tained actual  injury  from  an  undue  use  of  the  water,  he  has  a  ground  of 
action  ;  short  of  this  he  has  not."     Mr.  Bigelow  criticises  the  contrary  doctrine 


SECT.  I.  —  COMMENSURATE    WITH    INJURY.  555 

No.  4.  —  Wedgewood  v.  Bailey  —  Rule. 

of  Croolcer  v.  Bragg,  lo  Wendell,  260,  Imt  that  doctrine  w;is  followed  and 
approved  in  Parker  v.  Griswold,  17  Connecticut,  288;  43  Am.  Doc.  739;  Dacis 
v.  Fuller,  12  Vermont,  178;  36  Am.  Dec.  334. 

in  Parker  v.  Griswold,  supra,  it  was  explicitly  held  that  a  lower  riparian 
owner  might  recover  nominal  damages  for  the  diversion  of  a  natural  stream 
by  an  upper  proprietor,  ••  notwithstanding  he  has  sustained  no  perceptible  or 
actual  damage  by  .such  diversion."  This  is  a  very  learned  examination, 
citing  many  English  cases,  including  Bowen  v.  Hill,  1  Bing.  N.  C.  549, 
and  also  Webb  v.  Portland  Manuf.  Co.,  '6  Sumner  (United  States  Circ), 
190;  Blanchard  v.  Baker,  8  Greenleaf  (Maine),  25-J :  23  Am.  Dec.  504; 
Bolivar  Manuf.  Co.  v.  Neponset  Manuf.  Co.,  16  Pickering  (Mass.),  241; 
Whipple  v.  Manuf.  Co  ,  2  Story  (United  States  Circ),  061  ;  and  Allaire  v.  Whit- 
ney, 1  Hill  (Xew  York),  487,  in  which  Cowex,  J.,  approves  Croolcer  v.  Bragg, 
supra,  and  cites  the  opinion  of  Powell,  J.,  in  Ashby  v.  White,  2  Ld.  Ravin. 
948,  and  observes :  "  But  actual  damage  is  not  necessary  to  an  action.  A  vio- 
lation of  right  with  a  possibility  of  damage  forms  the  ground  of  an  action." 
Mr.  Bigelow  approves  Parker  v.  Griswold,  supra,  and  also  Sampson  v.  Hoddi- 
nott,  1  Com.  B.  N.  S.  590,  and  does  not  seem  to  discuss  the  question  of  dam- 
age by  reason  of  the  assertion  of  a  right  which  may  grow  into  a  prescription. 
He  admits  that  in  case  of  a  "  permanent  diversion  "  an  action  may  be  main- 
tained without  proof  of  actual  damage,  citing  Parker  v.  Griswold.  Judge 
Cooley  does  not  cite  the  principal  case  in  his  work  on  Torts. 


No.  4.  — WEDGEWOOD   v.   BAILEY. 

(K.    B.    AS   COURT    OF    ERROR,    1782). 
RULE. 

A  plaintiff  recovers  according  to  the  right  which  he  has 
at  the  time  of  bringincr  the  action. 

Wedgewood  v.   Bailey. 
Sir  T.  Raym.  403. 

Trover  by  five,  and  before  verdict  one  of  them  dies,  and  they 
proceed  to  trial,  and  verdict  for  the  plaintiffs,  and  then  the  plain- 
tiffs suggest  that  one  of  them  is  dead,  and  pray  judgment  for  the 
rest,  and  had  it ;  and  the  defendants  bring  a  writ  of  error  and 
assign  for  error,  that  the  party  died  before  verdict,  and  so  a  verdict 
was  given  for  a  dead  person.  And  after  argument  at  the  bar,  judg- 
ment was  reversed,  because  every  man  shall  recover  according  to 
the  right  which  he  hath  at  the  time  of  the  bringing  the  action  ; 
and  therefore  if  the  heir  brings  an  ejectment  and  his  ancestor  dies 


556  ACTION  (right  of). 


No.  4.  —  Wedgewood  v.  Bailey.  —  Notes. 


subsequent  to  his  action,  he  shall  not  recover.  And  in  this  case, 
although  the  plaintiffs  were  joint-tenants  and  had  a  capacity  of 
having  the  whole  survive,  yet  in  truth  every  one  had  but  a  moiety, 
and  so  were  not  at  the  time  of  the  action  entitled  to  so  much  as 
they  are  after  the  death  of  one  of  the  plaintiffs.  And  as  to  the 
case  of  2  Bulst.  262,  Spring's  Case,  he  reports  the  reason  of  the 
judgment  to  be,  because  by  the  death  of  one  the  action  survives  to 
the  other;  but  he  mistakes  the  reason  as  appears  by  Bead  and 
Haul  mans  Case.  As  to  the  cases  where  trespass  is  brought  against 
many,  and  one  dies,  they  differ  much  from  this  case,  because  there 
the  trespass  is  joint  or  several  at  the  pleasure  of  the  plaintiff.  As 
to  the  case  of  a  replevin,  3  Cro.  574,  though  an  avowant  is  to  some 
purposes  a  plaintiff,  yet  he  doth  not  bring  the  action,  and  so  not 
within  the  rule  that  the  same  right  must  continue  which  was  at 
the  bringing  the  action ;  and  so  judgment  was  agreed  to  be 
reversed  by  the  opinion  of  three  against  Dolben,  who  desired 
time  to  consider. 

ENGLISH   NOTES. 

It  is  a  well-settled  principle  that  in  all  actions,  whether  in  the  nature 
of  common-law  actions,  or  of  what  were  formerly  suits  in  Chancery,  the 
cause  of  action  must  subsist  at  the  time  of  the  issue  of  the  writ;  but,  in 
this  relation,  the  question  —  what  is  the  cause  of  action  —  has  given 
rise,  to  controversy.  This  has  arisen  in  cases  where  an  act  not  wrong- 
in  itself  is  followed  by  damage, —  the  act  and  the  damage  combining 
to  create  an  injury  under  the  maxim  sic  utere  tuo  ut  alienum  non 
Icedas.     The  following  are  the  cases:  — 

Backhouse  v.  Bonomi  (H.  L.  1861,  an  appeal  in  the  action  of  Bonomi 
v.  Backhouse),  9  H.  L.  C.  503,  34  L.  J.  Q.  B.  181:  — A.  works  his  own 
mine  under  the  land  of  B.,  so  as  to  cause  that  land  to  subside.  The 
subsidence  eventually,  and  at  a  biter  date,  causes  damage  to  the  adjoin- 
ing land  of  C.  Held,  that  C.'s  right  of  action  against  A.  arose  when  the 
actual  damage  occurred  ;  and  that  such  an  action  was  not  barred,  although 
brought  more  than  six  years  after  the  original  act  done  by  A. 

Lamb  v.  Walker  (1878),  3  Q.  B.  D.  389,  47  L.  J.  Q.  B.  451:  — Tn  an 
net  ion  for  injury  to  the  plaintiff's  land  and  buildings,  by  removal  of 
lateral  support  through  mining  operations  carried  on  by  defendant  on 
his  own  land  adjoining,  it  was  found  by  a  referee,  to  whom  the  amount 
of  damage  had  been  refer  rod.  that,  in  addition  to  the  existing  damage, 
there  would  be  future  damage  to  the  extent  of  £'450.  The  majority 
(Mellok  ami  Maxistv,  JJ.)  held  that  the  future  damage  was  recoverable 


SECT.  I.  —  COMMENSURATE    WITH    INJURY. 


No.  4.  —  Wedgewood  v.  Bailey.  —  Notes. 


in  the  action,  and  judgment  was  pronounced  accordingly;  bui  Cockbi  i:\. 
C.J.  (whose  opinion  has  in  effect  been  confirmed,  as  will  presently 
appear),  dissented,  holding  that,  inasmuch  as  according  to  Backhouse 
v.  Bonomi,  the  damage  was  the  gist  of  the  action,  the  actual  damage 
only  could  be  recovered  in  the  action  ;  and  any  furl  her  damage  could  only 
be  recovered  when  if  actually  arose  in  a  subsequent  action. 

Mitchell  v.  Darley  Main  Colliery  Co.  (C.  A.  1884),  1  I  Q.  B.  I).  L25, 
53  L.  J.  t).  B.  471;  and  s.  c.  in  H.  L.  s.  x.  Darley  Main  Colliery  Co. 
v.  Mitchell  (1886),  11  App.  Cas.  127.  55  L.  .1.  Q.  15.  529:— the  de- 
fendant, by  working  his  mines,  caused  (at  or  near  the  time  of  work- 
ing) a  subsidence  of  the  soil,  involving  damage  to  the  plaintiff;  ami 
this  damage  had  been  complained  of  and  repaired,  presumably  to  the 
plaintiff's  satisfaction.  After  a  considerable  interval  of  time  (more 
than  six  years),  and  without  any  fresh  act  on  the  part  of  the  defend- 
ant, there  was  a  fresh  subsidence,  causing  damage  to  the  plaintiff, 
which  it  was  admitted  would  not  have  taken  place  but  for  the  de- 
fendant's original  working.  The  Court  of  Appeal,  following  out  the 
logical  consequence  of  the  decision  of  the  House  of  Lords  in  Back- 
house v.  Bonomi,  held  that  the  new  damage  was  a  fresh  cause  of  action; 
and  all  the  Judges  of  Appeal  (Brett,  M.  R.,  Bowen,  and  Fry,  L.  JJ.) 
concurred  in  approving  the  judgment  of  Cockburx,  C.  J.,  in  Lamb  \. 
Walker  as  the  logical  consequence  of  the  judgment  of  the  House  of 
Lords  in  Backhouse  v.  Bonomi.  Finally,  on  the  case  of  the  Darley 
Main  Colliery  Co.  being  taken  to  the  House  of  Lords,  the  judgment  of 
the  Court  of  Appeal  was  affirmed  by  a  majority,  Lords  HALSBURY, 
Bramwell,  and  •  Fitzgerald,  against  Lord  Blackburn  dissenting. 
Each  of  the  Lords  forming  the  majority  expressly  approved  of  the  judg- 
ment of  Cockkukx,  C.  J.,  in  Lamb  v.   Walker. 

It  is  to  be  observed  that  the  judgment  of  the  majority,  in  the  case  of 
the  Darley  Main  <  'oilier;/  Co.,  is  expressly  or  impliedly  based  on  two 
inferences  from  the  facts: — (1)  That  the  original  workings  were  in 
themselves  lawful  acts  which,  if  not  followed  by  damage,  would  not 
have  created  any  cause  of  action;  and  (2)  That  the  second  subsidence 
was  a  fresh  and  distinct  occurrence.  In  the  judgment  of  Lord  FITZ- 
GERALD, indeed,  a  secondary  cause  of  the  subsequent  damage  hv  reason  of 
lawful  workings  of  another  person  at  a  distant  place,  is  adverted  to ;  hut. 
as  Lord  Fitzgerald,  no  less  Lords  Halsbury  and  Bramwell,  entirely 
approved  of  the  judgment  of  Cockburn,  C.  J.,  in  Lamb  v.  Walker, 
this  last  point  cannot  be  regarded  as  entering  into  the  ratio  decidendi 
of  the  House.  The  result  of  the  judgments  must,  however,  he  taken 
subject  to  the  general  observations  by  which  they  are  accompanied. 
Lord  Halsbury  (11  App.  Cas.  132)  says:  '-The  question  is  whether 
The  satisfaction  for  the  past  subsidence  must  he  taken  to  have  been 
equivalent  to  a  satisfaction  for  all  succeeding  subsidence.      No  one  will 


558  ACTION  (right  of). 


No.  4.  —  Wedgewood  v.  Bailey.  —  Notes. 


think  of  disputing  the  proposition  that,  for  one  cause  of  action,  you 
must  recover  all  damages  incident  to  it  by  law.  once  and  forever.  A 
house  that  has  received  a  shuck  may  not  at  once  show  all  the  damage 
done  to  it.  but  it  is  damaged  none  the  less  then  to  the  extent  that  it  is 
damaged;  and  the  fact  that  the  damage  only  manifests  itself  later  on,  by 
stages,  docs  not  alter  the  fact  that  the  damage  is  there.''  And  Lord  Bram- 
well  (p.  144)  :  "It  is  a  rule  that  where  a  thing  directly  wrongful  in 
itself  is  done  to  a  man,  in  itself  a  cause  of  action,  he  must,  if  he  sues 
in  respect  of  it,  do  so  once  and  for  all.  As  if  he  is  beaten  or  wounded, 
if  he  sues,  he  must  sue  for  all  his  damage  past,  present,  and  future, 
certain  and  contingent.  He  cannot  maintain  an  action  for  a  broken 
arm  and  subsequently  for  a  broken  rib,  though  he  did  not  know  of  it 
when  he  commenced  his  first  action."  And  Lord  Blackburn,  whose 
judgment,  though  overruled  in  the  actual  case,  is  not  less  weighty  mioit 
this  point,  observes  (p.  137):  "  < .'<><  kisuex,  L.  C.  J.,  could  not,  in 
Lamb  v.  Walker,  have  meant  to  go  so  far  as  to  say  that  if  a  house  had 
been  shaken  and  was  evidently  going  to  fall,  but  had  not  completely 
fallen,  when  the  writ  issued,  the  plaintiff  could  only  recover  for  what 
had  already  occurred,  and  would  have  to  bring  a  fresh  action  when  a 
further  chimney  fell." 

In  Crumble  v.  Wallsend  Local  Board  (1891),  1  Q.  B.  503,  60  L.  J. 
Q.  B.  392,  the  question  arose  out  of  the  acts  of  a  local  board,  who  are 
protected  by  the  Public  Health  Act,  1875,  from  actions  unless  com- 
menced within  six  months  after  the  cause  of  action.  The  defendants 
had  made  an  excavation  for  a  sewer,  and  by  reason  of  their  not  having 
properly  filled  in  the  excavation  after  the  sewer  was  made,  the  adjacent 
soil  kept  getting  washed  into  the  hollow,  and  the  plaintiff's  house  was 
gradually  undermined.  The  Court  of  Appeal  applied  the  principle  of 
the  Doric  ij  Main  Collier;/  Co.,  although  the  subsidence  might  have  been 
said,  in  a  sense,  to  be  continuous;  and  they  held  the  plaintiff  entitled 
to  recover  for  all  damage  which  had  accrued  subsequently  to  the  date  of 
six  months  before  the  issue  of  the  writ. 

Idie  principle  of  the  rule  is  modified  in  a  case  where  the  court,  as  a 
Court  of  Equity,  exercises  the  jurisdiction  conferred  upon  the  Court  of 
Chancery  by  Lord  Cairn's  Act  (1858,  21  &  22  Vict.  c.  27,  s.  2)  to 
award  damages  in  lieu  of  an  injunction.  In  such  a  case,  where  an 
injunction  is  claimed  to  restrain  a  wrongful  act  commenced  before  the 
issue  of  the  writ,  and  continued  afterwards,  though  come  to  an  end 
before  the  trial,  the  court  has  jurisdiction  to  assess  the  whole  of  the 
damages  up  to  the  determination  of  the  wrong.  Fritz  v.  Ilobson 
(1880),  14  Ch.  D.  542,  49  L.  J.  Ch.  321;  Davenport,  v.  Rylands 
(18(36),  L.  R.  1  Eq.  302,  35  L.  J.  Ch.  204.  The  formal  repeal  of 
Lord  Cairn's  Act  by  the  Statute  Law  Revision  Act  of  1S83  does 
not,  of  course,  alter  this  practice,  which  is  within  the  saving  clause; 


SECT.  II.  — FOE    CAUSE    AFFECTING    PUBLIC.  559 

No.  5.  —  Crosby  v.  Leng.  —  Rule. 

and  the  practice  is  confirmed,  and  perhaps  extended,  by  the  enact- 
ment of  the  R.  S.  C.  1883  ( Ord.  36,  B.  58),  that  "Where  damages 
are  to  be  assessed  in  respect  of  any  continuing  cause  of  action,  they 
shall  be  assessed  down  to  the  time  of  the  assessment."  The  rules  of 
court  which  allow  pleading  by  way  of  defence  of  matters  arising  pend- 
ing the  action  (E>.  S.  C.  Ord.  24)  do  not  affect  the  principle  as  to  the 
plaintiff's  right  in  the  action.  It  was  at  one  time  a  controverted  ques- 
tion whether  a  counterclaim  under  the  modern  rules  must  be  confined  to 
matter  arising  before  the  date  of  issue  of  the  original  writ  in  the  action. 
But  it  is  now  settled  that  in  this,  as  in  other  respects,  the  counterclaim 
is  to  be  dealt  with  as  if  it  were  an  independent  action.  Beddall  v.  Mait- 
land  (1881),  17  Ch.  1).  174,  50  L.  J.  Ch.  401;  McGoivan  v.  MiddUton 
(C.  A.  1883),  11  Q.  B.  D.  464,  52  L.  J.  Q.  B.  355. 

AMERICAN   NOTES. 

The  right  of  action  must  be  complete  before  action,  and  the  subsequent 
occurrence  of  a  material  fact  will  not  avail  in  maintaining  the  action. 

As  the  issue  of  execution  on  the  judgment  in  a  creditor's  bill;  McCullough 
v.  Colby,  I  Bosworth  (New  York  Superior  Ct  ),  603;  5  id.,  477;  eviction, 
Hare  v.  Van  Deusen,  ol  Barbour  (New  York  Supreme  Ct.),  92;  assignment. 
Huchanan  v.  Comstock,  57  Barbour,  582;  action  on  note  against  maker  on  last 
day  of  grace  but  after  hanking  hours.  Smith  v.  Aylesworth,  40  Barbour,  104  ; 
subsequent  claims  accruing  to  a  receiver,  Bostwick  v.  Menck,  1  Daly  (New 
YTork  Common  Pleas),  08;  assent  of  equitable  owner  of  note  to  suit  thereon, 
Moore  v.  Maple,  25  Illinois,  341  ;  and  the  like  doctrine  is  supported  by  Church 
v.  Front,  3  Thompson  &  Cook  (New  York  Supreme  Ct.),  318;  Wadley  v.  Jones, 
55  Georgia,  329  :  Muller  v.  Earle,  5  Jones  &  Spencer  (New  York  Superior  Ct.  I, 
388;    Wultson  v.  Thibon,  17  Abbott  Practice  (New  York),  184. 

Section  II.  —  For  Cause  affecting  the  Public. 

No.  5.  — CROSBY   v.   LENG. 

(k.  b.  1810.) 

RULE. 

Where  an  injury  is  done  by  a  felonious  act,  the  civil 
injury  does  not  merge  in  the  felony,  but  the  right  of  civil 
action  is  suspended  in  order  that  public  justice  may  first  be 
satisfied.  The  obstacle  is  removed  by  conviction  or  acquit- 
tal on  a  criminal  trial ;  and  in  the  latter  case  the  court,  in 
order  to  entertain  an  action,  have  only  to  be  satisfied  that 
there  was  no  collusion  in  the  acquittal. 


560  ACTION   (right  of). 


No.  5  —  Crosby  v.  Leng. 


Crosby  v.  Leng. 

12  East,  409,  (s.  c.  11  R.  R.  437). 

This  was  an  action  for  an  assault,  very  aggravated  in  its  kind, 
which  was  tried  before  Le  Blanc,  J.,  at  the  last  assizes,  at  York, 
when  a  verdict  was  given  for  the  plaintiff  for  £100  damages,  sub- 
ject to  the  opinion  of  the  Court  upon  a  point  of  law  which  was 
reserved.  And  Park  having  moved,  by  leave,  at  the  beginning  of 
the  term,  for  a  rule  to  enter  a  nonsuit,  in  order  to  bring  the  ques- 
tion before  the  Court,  Le  Blanc,  J.,  now  reported  shortly  that  the 
assault  was  proved  at  the  trial  to  have  been  committed  under  such 
circumstances  as  in  his  judgment  would  have  amounted  to  a  stab- 
bing within  the  Act  of  the  43  Geo.  III.  c.  58  ;  which  makes  it  a 
capital  felony  wilfully,  maliciously,  and  unlawfully,  to  stab,  with 
intent  to  murder,  maim,  disfigure,  or  disable  any  person,  &c,  where, 
if  death  had  ensued,  the  case  would  in  law  have  amounted  to  mur- 
der :  and  he  said  that  he  should  have  so  left  the  case  to  a  jury  on 
the  tiial  of  an  indictment  for  the  felony  ;  but  that  in  this  case  it 
appeared  by  a  record  produced  in  court,  on  the  part  of  the  plaintiff', 
that  the  defendant  had  been  before  tried  for  the  felony  and 
acquitted:  and  the  question  was  whether,  after  such  acquittal,  this 
action   lay. 

Holrovd  and  Richardson  now  opposed  the  rule,  and  contended 
that  the  trespass  was  not  entirely  merged  in  the  felony,  but  only 
till  after  the  party  had  been  tried  for  the  felony,  whether  such 
trial  ended  in  an  acquittal  or  conviction.  The  justice  of  the 
country  was  then  satisfied  ;  and  the  doctrine  of  the  merger  of  a 
trespass  in  felony  was  only  to  stimulate  the  party  injured  to  bring 
the  offender  to  trial  for  the  public  offence,  and  to  prevent  any  com- 
promise of  that,  by  denying  to  him,  in  the  first  instance,  all  redress 
for  the  private  injury  he  may  have  received  from  the  commission 
of  the  felonious  act,  till  the  judgment  of  the  law  had  been  passed 
upon  it ;  but  by  no  means  to  take  away  his  redress  absolutely  after 
the  ends  of  public  justice  were  attained.  Lord  Hale  (1  Hale  P. 
C.  546),  lays  it  down,  that  after  conviction  the  action  lies  to  the 
party  injured,  because  he  has  prosecuted  the  law  against  the 
offender,  and  there  can  be  no  mischief  to  the  commonwealth. 
The  same  law  then  must  hold  after  an  acquittal  of  the  felony  :  and 
the  objection  which  may  be  urged,  that  this  may  lead  to  collusive 
prosecutions  for  the  purpose  of  an  acquittal,  cannot  hold  ;  for  if 


SKiT    II.  —  FOE    CAUSE    AFFECTING    PUBLIC.  561 


No.  5.  -    Crosby  v.  Leng. 


any  collusion  appeared,  the  plaintiff  iD  the  action  could  not  recover, 
because  be  could  not  avail  himself  of  a  judgment  procured  by 
fraud,  as  was  held  in  The  Duchess  of  Kingston's  Case,  11  St.  Tr. 
198;  Arnbl.  761,  762.  They  then  mentioned  a  case  «>|'  Hayton  v. 
Brovn,  which  was  tried  before  Mr.  Baron  WOOD  at  the.  Lasl 
summer  assizes  at  Lancaster,  where  he  permitted  the  plaintiff'  to 
recover  in  an  action  of  trespass  for  a  similar  assault  t<>  the  present, 
after  the  defendant  had  been  tried  for  the  felony  and  acquitted  at 
the  antecedent  summer  assizes. 

Park,  in  support  of  the  rule,  argued  from  the  defect  of  precedents 
in  this  case  in  support  of  the  action,  that  the  general  opinion  of 
the  profession  must  have  been  against  it,  particularly  where  the 
occasion  must  have  frequently  occurred.  The  cases  have,  already 
broken  in  too  much  on  the  common-law  principle,  that  the  trespass 
is  merged  in  the  felony,  by  admitting  the  action  to  be  brought 
after  a  conviction  of  the  felony  ;  but  if  this  be  now  extended  to 
cases  of  acquittal,  it  will  let  in  all  the  mischief  against  which  the 
common  law  meant  to  guard,  by  encouraging  faint  or  collusive 
prosecutions  for  the  felony,  to  give  a  better  opportunity  to  the 
party  injured  of  obtaining  private  redress.  The  cases  are  not  recon- 
cileable ;  for  in  Higgins  v.  Butcher,  Tr.  4  Jac.  1;  Yelv.  90,  all 
the  Court  agreed  that  if  one  beat  the  servant  of  another,  so  that 
he  die,  the  master  shall  not  have  an  action  for  the  battery  and  loss 
of  service,  because  the  felony  drowns  the  private  wrong,  and  his 
action  is  thereby  lost;  and  this  was  agreed  to  be  law  in  a  subse- 
quent case  of  Cooper  v.  Witham,  M.  20  Car.  2  ;  1  Sid.  375.  But 
see  1  Lev.  247,  S.  C.  He  admitted  the  weight  due  to  the  bite  deci- 
sion in  the  case  of  Hayton  v.  Brown  ;  but  as  that  was  never  brought 
in  revision  before  the  Court  in  Bank,  he  considered  that  decision 
as  still  open  to  review. 

Lord  Ellexborough,  C.  J.  The  policy  of  the  law  requires  that 
before  the  party  injured  by  any  felonious  act  can  seek  civil  redress 
for  it,  the  matter  should  be  heard  and  disposed  of  before  the 
proper  criminal  tribunal,  in  order  that  the  justice  of  the  country 
may  be  first  satisfied  in  respect  to  the  public  offence ;  and  after  a 
verdict  either  of  acquittal  or  conviction,  the  judgment  is  so  far  con- 
clusive in  any  collateral  proceeding  quoad  the  particular  matter,  that 
the  objection  is  thereby  removed  of  bringing  that  sub  jvdicc  in  a  civil 
action,  which  was  the  proper  subject-matter  of  a  criminal  prosecu- 
tion. Here  the  defendant  having  been  before  tried  and  acquitted 
vol.  i.  —  36 


562  ACTION   (right  of). 


No.  5.  —  Crosby  v.  Lsng. 


of  the  felony,  the  objection  founded  upon  the  general  policy  of  the 
law  does  not  apply.  This  point  has  been  before  decided  in  the 
cases  of  actions  brought  after  a  conviction  of  the  defendant  for 
the  felony ;  and  the  only  difference  which  can  be  suggested 
between  the  case  of  a  prior  conviction  and  that  of  an  acquittal  is, 
that  the  acquittal  may  have  been  brought  about  by  the  defendants 
colluding  with  the  prosecutor.  But  if  the  acquittal  be  shown 
either  in  pleading  or  by  evidence  to  have  been  obtained  by  collu- 
sion, it  would  be  put  aside,  and  the  objection  would  still  remain. 
All  the  mischief  therefore  that  could  result  from  extending  the 
same  rule  to  cases  of  acquittal,  which  has  established  the  right  to 
sue  after  a  conviction  of  the  felon,  is  done  away  by  letting  the 
defendant  in  to  show  that  the  judgment  of  acquittal  was  obtained 
•per  fr audi m. 

Grose,  J.  The  true  ground  of  the  general  rule  against  the 
plaintiff's  right  to  sue  for  damages  in  a  civil  action,  for  any  act 
which  amounts  to  felony,  is  to  prevent  the  criminal  justice  of  the 
country  from  being  defeated,  —  which  it  would  be  very  likely  to  be 
if  the  party  were  first  permitted  to  obtain  a  civil  satisfaction  for 
the  injury ;  but  that  does  not  apply  to  this  case,  where  there  has 
already  been  a  trial  and  acquittal  of  the  felony. 

Le  Blanc,  J.  The  defendant  having  been  acquitted  of  the 
felony,  and  that  without  fraud,  as  it  must  be  taken  to  be,  the  case 
stands  clear  of  the  general  objection,  that  if  the  action  were  sus- 
tained, criminal  justice  might  be  defeated.  All  the  cases  which 
show  that  the  action  lies  after  convietion  of  the  defendant  for  the 
felony,  apply  strongly  in  support  of  it  after  acquittal ;  for  it  is  a 
stronger  case  to  permit  the  party  injured  to  proceed  upon  his  civil 
remedy  to  recover  damages  after  a  conviction  of  the  offender,  when 
the  law  has,  by  means  of  the  forfeiture  of  his  property  consequent 
upon  a  conviction,  taken  away  from  him  the  means  of  satisfying 
the  damages.  Besides,  when  the  defendant,  after  an  acquittal  of 
the  felony,  is  called  upon  to  make  recompence  in  civil  damages 
to  the  party  grieved,  it  would  be  stronger  for  him  to  be  permitted  to 
allege  that  he  was  not  properly  acquitted,  than  in  the  other  case  it 
would  be  to  allege  that  he  had  not  been  properly  convicted.  And 
here  the  defendant  cannot  say,  against  the  record  of  acquittal,  that 
this  was  a  felony.  After  the  question  of  felony  has  been  deter- 
mined, it  leaves  the  trespass  untouched :  the  defendant  has  com- 
mitted the  trespass,  which  is  the  subject  of  the  civil  action  ;  but 


SECT.  II.  —  FOR    CAUSE    AFFECTING    PUBLIC.  563 

No.  5.  —  Crosby  v.  Lang.       Notes. 

the  question  on  the  indictment  was  whether  he  had  not  done  some- 
thing more.  It  often  happens  that  after  an  acquittal  of  the  felony 
the  defendant  is  tried  for  the  misdemeanour  upon  the  same  evidence  ; 
and  it  would  be  no  objection  though  the  judge  might  still  think 
that  there  was  evidence  of  the  felony  to  have  gone  to  the  jury. 

Bayley,  J.  If  this  action  would  not  lie,  there  might  he  cases 
where  a  party  injured  would  he  without  remedy,  and  yet  the 
wrong-doer  would  not  he  liable  to  punishment  :  as,  for  instance, 
there  might  he  circumstances  known  only  to  the  plaintiff  himself, 
which  when  proved  by  him  upon  the  prosecution  of  the  defendant 
for  felony,  would  entitle  him  to  he  acquitted,  when,  without  such 
proof,  the  evidence  might  lead  to  convict  him.  Suppose  upon  the 
indictment  for  the  felonious  stabbing,  it  lay  only  within  the  knowl- 
edge of  the  plaintiff  that  a  previous  provocation  had  been  given, 
which,  if  death  had  ensued,  would  have  reduced  the  offence  to 
manslaughter;  there  would  he  a  defect  of  justice  if  the  plaintiff 
could  not  afterwards  obtain  reparation  in  damages  for  the  civil 
injury,  because,  for  want  of  the  proof  of  such  provocation,  known 
only  to  himself,  the  offence  appeared  to  be  felony.  The  record  of 
acquittal  is  at  least  conclusive  evidence  that  the  defendant  was 
not  proved  guilty  of  the  felony,  and  he  cannot  be  questioned  for 
the  same  offence  again ;  but  it  leaves  the  civil  remedy  open. 
Unless,  therefore,  in  those  cases  where  the  conduct  of  the  party 
complaining  can  be  impeached  as  having  colluded  in  procuring  the 
acquittal,  it  operates  as  an  answer  to  any  objection  that  the  fact 
proved  would  be  evidence  of  felony. 

Rule  discharged. 

ENGLISH   NOTES. 

l  lie  hypothesis,  formerly  current,  that  the  civil  injury  merged  in  the 

•  rime,  has  long  been  abandoned;   and,  while  the  principle  thai  the  right 

if  action  is  suspended  has   been   reiterated  by   numerous  and  weighty 

mthorities,  doubts   have  been   recently  thrown   upon   the   mode  —  and 

;  to   whether    there   is  any  mode  —  of  giving  practical   effect  to   this 

rinciple. 

In  Stone  v.  Marsh  (K.  lb  1S27).  Gib  &  C.  551,  the  plaintiffs,  who 

were   trustees,    broughi    a'    action   against   the   defendants,    who   were 

bankers,  for  the  proceeds  of  certain   securities   belonging  to  the  trust 

and  received  by  the  bank.      The  securities  had  been  sold  by  means  of  a 

forged  transfer.     The  forgery  had  been  committed  by  one  Fauntleroy, 

who  was  formerly  a  joint  trn     •  ■  with  the  plaintiffs,  and  the  managing 


564  ACTION   (right  of). 


No.  5.       Crosby  v.  Leng.  —  Notes 


partner  in  the  business  of  the  hanking  house.  The  defendants  were 
innocent  of  the  crime;  and,  before  this  action  was  brought,  Fauntleroy 
had  been  executed  for  another  forgery.  It  was  held  that,  as  there  was 
no  longer  any  public  policy  to  be  served  by  a  criminal  prosecution,  the 
civil  action  was  not  barred.  And  in  Marsh  v.  Keating  (H.  L.  1834), 
1  Bing.  N.  C.  198,  where  a  similar  action,  arising  out  of  the  forgeries 
by  Fauntleroy,  was  brought  on  appeal  to  the  House  of  Lords,  the  plain- 
tiff, the  executor  of  the  stockholder  whose  name  had  been  forged  (suing 
on  behalf  of  the  Bank  of  England,  who  had  admitted  their  liability  to 
replace  the  stock),  was  held  entitled  to  recover  the  proceeds  from  the  sur- 
viving partners  of  the  banking  firm  who  had  received  them.  Park.  J., 
who  delivered  the  opinion  of  the  consulted  judges,  said  (1  Bing.  N.  C. 
p.  217):  "It  may  be  admitted  that  the  civil  remedy  is,  in  all  cases, 
suspended  by  a  felony  where  the  act  complained  of,  which  would  other- 
wise, have  given  a  right  of  action  to  the  plaintiff,  is  a  felonious  act.  .  .  . 
But  this  principle  does  not  apply  to  the  present  case,  because,  first,  None 
of  the  defendants  had  any  privity  or  share  in  the  felonious  act.  .  .  . 
And,  secondl //,  Fauntleroy,  the  person  guilty  of  the  forgery,  had  suffered 
the  extreme  penalty  of  the  law  before  the  action  was  brought." 

So  in  White  v.  Spettigue  (Ex.  1845),  13  M.  &  W.  603,  14  L.  J. 
Excli.  99,  an  action  of  trover  was  held  maintainable  to  recove  lie 
value  of  goods  which  had  been  stolen  from  the  plaintiff,  and  which  he 
defendant  had  innocently  purchased,  although  no  steps  had  been  tal  en 
to  bring  the  thief  to  justice.  Stone  v.  Marsh  and  Marsh  v.  Keating 
were  cited  and  relied  on  in  the  judgments. 

The  decision  in  White  v.  Spettigue  is  again  cited  and  confirmed  in 
Zee  v.  Bayes  ("C.  P.  1856),  18  C.  B.  599,  (503;  and  it  is  thus  set.  led 
law  that  the  circumstance  of  the  cause  of  action  having  had  its  origin 
in  crime  is  no  bar  or  hindrance  to  an  action  between  parties  innocenl 
of  the  crime. 

The  mode  of  carrying  into  effect  the  principle  that  the  right  of  action 
is  suspended  was  brought  into  question  in  Wells  v.  Abraham  (1872), 
L.  11.,  7  Q.  B.  555,  41  L.  J.  Q.  B.  306;  where  it  was  decided  that  a 
judge  trying  the  issue  in  the  action  at  Nisi  Prius,  could  not  nonsuit  the 
plaintiff  on  the  ground  that  the  injury  sued  for  was  a  felony.  Black 
burn,  J.,  goes  so  far  as  to  point  out  that  the  rule  rests  mainly  upon 
dicta;  and  suggests  that  the  only  mode  of  enforcing  it  would  be  that 
the  court  might  stay  the  proceedings  on  grounds  of  public  policy,  and 
on  the  intervention  of  the  Attorney-General.  And  it  is  observed  by 
Lush,  J.,  that  the  defendant  could  not  set  up  his  own  crime  as  a  bar  to 
the  plaintiff's  redress  in  his  action.  These  doubts  are  reiterated  in  the 
judgment  of  the  Lords  Justices  James  and  Bramwell  (delivered  by  the 
latter)  in  Ex  parte  Ball;  In  re  Shepherd  (C.  A.  1879),  10  Ch.  D.  667. 


SECT.  II.  —  FOK    CAUSE    AFFECTING    PUBLIC.  565 

No.  5.  —  Crosby  v.  Leng.  —  Notes. 


And  observations  are  made  upon  the  difficulty  even  of  maintaining  the 
solution  suggested  by  Mr.  -lustier  Blackburn-. 

In  Midland  Ins.  Co.  v.  Smith  |  1881),  6  Q.  B.  D.  557,  50  L.  J.  Q.  B. 
•*!LM.),  an  action  was  brought  by  the  Insurance  Company  against  the  insured 
and  his  wife,  by  whose  felonious  act  it  was  alleged  the  premises  had  been 
burnt  down,  causing  trouble  and  expense  to  the  company.  I  Mi  demurrer 
it  was  held  by  Watkin  Williams,  J.,  that  the  action  was  not  maintain- 
able, the  insurance  company  having  no  rights  except  the  right,  on  ad- 
mitting the  claim,  to  stand  in  the  place  of  the  insured.  But  on  a  review 
of  all  the  authorities  relating  to  the  above  rule,  he  held  that,  if  the 
action  had  been  otherwise  maintainable,  the  demurrer  could  not  have 
succeeded  merely  on  the  ground  that  the  felon  had  not  been  prosecuted. 

It  is  to  be  observed  that  in  actions  for  damages  under  Lord  Camp- 
bell's Act  (184(5,  9  &  10  Vict.  c.  93)  for  negligently  or  by  default  caus- 
ing the  death  of  another  person,  it  is  expressly  enacted  that  the  action 
shall  be  maintainable,  although  the  death  shall  have  been  caused  under 
such  circumstances  as  amount  in  law  to  a  felony. 

In  connection  with,  though  not  strictly  under,  the  above  rule,  may 
be  cited  a  case  in  which  came  into  question  the  effect  of  the  Statute  of 
o  Rich.  II.,  upon  the  right  of  action  consequent  upon  a  forcible  entry. 
The  Statute  (5  Rich.  II.  Stat.  1,  c.  8)  enacts,  "That  none  from  hence- 
forth make  any  entry  into  any  lands  and  tenements  but  in  case  where 
such  entry  is  given  by  the  law;  and  in  such  case  not  with  strong  hand, 
nor  with  multitude  of  people,  but  only  in  peaceable  and  easy  manner. 
And  if  any  man  from  henceforth  do  to  the  contrary,  and  thereof  he 
duly  convict,  he  shall  be  punished  by  imprisonment  of  his  body,  and 
thereof  ransomed  at  the  King's  will."  In  Beddall  v.  Maitland  (1881), 
17  Ch.  D.  171,  50  L.  J.  Ch.  401,  a  question  arose  out  of  (inter  alia)  a 
counterclaim  by  the  defendant  for  (1)  a  forcible  entry  to  the  defendant's 
house,  and  (2)  reckless  throwing  about  of,  and  damage  to,  the  defendant's 
furniture.  It  appeared  at  the  trial  that  the  plaintiff  was  entitled  peace- 
ably to  enter  and  take  possession  of  the  house,  but  that  he  entered  for- 
cibly, contrary  to  the  statute;  and  that  he  then  turned  the  defendant  and 
his  family  out,  and  put  his  furniture  out  of  the  house.  Fry,  J.,  held 
that  (1)  the  defendant,  who  was  unlawfully  in  possession,  had  no  right 
of  action  against  the  plaintiff  for  the  forcible  entry;  but  that  (2)  in  re- 
spect" of  the  injury  done  to  the  furniture  which  the  defendant  could  only 
have  justified  by  a  lawful  possession,  and  which  therefore  constituted 
an  independent  wrong,  the  plaintiff  was  entitled  to  succeed.  <  Mi  the 
former  branch  of  this  judgment  he  cited  Pollen  v.  Brydges  (1845),  1  1 
M.  &  W.  437;  and  on  the  latter,  Newton  v.  Harland  (1840),  1  Scoti 
X.   K.  474.      The   last   mentioned   case,  of  which  the  report   is  \eiy  dif- 


56G  ACTION  (right  of). 


No.  5.  —  Crosby  v.  Leng.  —  Notes. 


fuse,  is  neatly  summarised  by  th<'  learned  Judge  (Fry,  J.)  as  follows 
(17  Ch.  1).  188) :  "  The  action  was  brought  to  recover  damages  for  an 
assault  committed  on  the  plaintiff's  wife  in  the  course  of  a  forcible 
entry  by  the  defendant  into  some  apartments  which  had  been  occupied 
by  the  plaintiff  as  tenant  to  the  defendant.  The  plaintiff  remained  i it 
the  apartments  after  the  expiration  of  his  term,  and  the  defendant  en- 
tered by  force  and  turned  out  the  plaintiff's  wife  and  family,  and  in 
doing  so  assaulted  the  wife.  The  defendant  pleaded  that  the  acts  were 
done  in  defence  of  his  possession  of  the  house;  and  the  Court  of  Common 
Pleas  held,  contrary  to  the  opinions  of  Baron  Pabke  and  Baron  Aldek- 
son  (in  their  directions  to  the  jury  on  two  several  trials  of  the  case), 
that  the  defence  failed,  because  the  defendant's  entry  was  unlawful." 

AMERICAN  NOTES. 

The  doctrine  of  the  principal  case  has  very  little  prevalence  in  this  country, 
and  generally,  either  by  judicial  departure  from  it,  or  by  statutory  enactment. 
the  contrary  rule  prevails. 

In  Alabama,  the  English  doctrine  is  accepted  ;  Minion  v.  Bradley,  27  Ala- 
bama, 610. 

At  an  early  day  it  was  held  that  a  civil  injury  included  in  a  felony  is  merged 
therein,  ami  so  that  assumpsit  would  not  lie  against  a  thief  in  respect  to  the 
goods  stolen.  Foster  v.  Tucker,  3  Greenleaf  (Maine),  458;  11  Am.  Dec.  243. 
And  so  in  Boardman  v.  Gore,  15  Massachusetts,  331  :  but  a  subsequent  statute 
removed  the  disability  in  each  State. 

It  is  now  generally  held  that  the  civil  remedy  is  not  merged  in  nor 
suspended  by  the  criminal  act.  Alwood  v.  Fisk,  101  Massachusetts,  363 ; 
Howk  v.  Minnick,  1!)  Ohio  St.  462;  2  Am.  Rep.  413;  Hyatt  v.  Adams,  10 
Michigan,  180  (obiter)-,  Thayer  v.  Boyle,  30  Maine,  17~> ;  Newell  v.  Cowan,  30 
Mississippi,  492;  Branson  v.  Martin,  17  Arkansas.  270:  Nowlan  v.  Griffin,  08 
Maine,  235;  28  Am.  Rep.  45;  Cannon  v.  Burris,\  Hill  (So.  Carolina).  372  ; 
Bailor  v.  Alexander,  li  Humphrey  (Tennessee),  433;  Patton  v.  Freeman,  Coxe 
(New  Jersey).  113;  Cook  v.  Darby,  1  Munford  (Virginia),  111 ;  White  v.  Fart. 
:>  Hawks  (No.  Carolina),  251 ;  Nash  v.  Primm,  1  .Missouri.  178;  Mitchell  v. 
Minis,  8  Texas,  6;  Van  Duzer  v.  Howe,  21  New  York,  531,  538;  Hepburn's 
Case,  3  Bland  (Maryland).  114;  Lofton  v.  Vogles,  17  Indiana,  105;  Pettingill  v. 
Hideout,  0  New  Hampshire,  454;  25  Am.  Dec.  173;  Quimby  v.  Blackey,  63  New 
Hampshire,  77;  Williams  v.  Dickenson,  28  Florida.  90. 

In  Connecticut  the  English  doctrine  is  limited  to  capital  felonies;  Cross  v. 
Guthery,  2  Root.  !)<> :  in  Georgia,  to  common-law  felonies.  Adams  v.  Barrett, 
5  Georgia,  404. 

Mr.  Bishop  says  (1  Criin.  Law,  §271).  that  "in  New  Jersey,  Virginia. 
North  Carolina.  Missouri,  Michigan,  and  Texas  the  question  appears  to  be  in 
doubt,  with  perhaps  a  tendency  against  the  English  doctrine." 

In  Boston,  8fc,  R.  Co.  v.  Dana,  1  Gray  (Mass.),  83,  Bigelow,  J.,  attributed 
the  policy  of  the  English  doctrine  to  the  fact  that  in  England  there  is  no 
public  prosecutor  for  each  county,  and  it  becomes  the  duty  of  every  sufferer 


SECT.  II.  —  FOK   CAUSE   AFFECTING    PUBLIC. 


Nc.  6.  —  Attorney-General  v.  Shrewsbury  Bridge  Co.  —  Rule. 

himself  to  trace  the  offender  and  prosecute  him  to  conviction,  and  there- 
fore Ins  private  interest  should  not  l>c  permitted  to  interfere  with  the 
discharge  of  that  public  duty.  "The  whole  system  of  the  criminal  admin- 
istration of  justice  in  England  is  made  to  depend  very  much  upon  the  vigil- 
ance and  efforts  of  private  individuals."  But  in  this  country  no  such  public 
necessity  or  policy  exists,  because  every  county  has  its  public  prosecutor  and 
its  frequent  grand  juries.  He  also  argues  that  the  adoption  of  the  English 
rule  here  would  furnish  "  a  strong  motive  to  stifle  the  prosecution  and  com- 
pound with  the  felon."  Also  that  it  would  be  immoral  "  to  suffer  a  party  to 
set  up  and  maintain  in  a  court  of  law  a  defence  founded  solely  upon  his  own 
criminal  act." 

Mr.  Bishop  expresses  his  own  opinion,  and  not  the  judicial  sense  of  this 
country,  when  he  says  (1  Crim.  Law,  §  1272),  that  "  witli  us,  the  true  rule  is 
believed  to  be  that  the  party  may  institute  the  proceeding  for  damages  as 
promptly  as  lie  chooses,  only  he  must  not  bring  on  the  trial  in  advance  of  his 
public  duty." 


No.    6.  —  ATTORNEY-GENERAL    v.    SHREWSBURY 
(KINGSLAND)    BRIDGE   CO. 

(chancery  div.  1882.) 

RULE. 

When  an  illegal  act  is  being  committed  which  in  its 
nature  tends  to  the  injury  of  the  public,  such  as  an  inter- 
ference with  a  public  highway  or  a  navigable  stream, 
the  Attorney-General  can  maintain  an  action  on  behalf 
of  the  public  to  restrain  the  commission  of  the  act,  with- 
out adducing  any  evidence  of  actual  injury  to  the  public  ; 
and  in  such  a  case  an  injunction  will  be  granted  with 
costs,  although  no  evidence  of  actual   injury  is   given. 

Attorney-General  v.  Shrewsbury  (Kingsland)  Bridge  Co. 

21  Ch.  D.  752  ;   (s.  c.  51  L.  J.  Ch.  740). 

This  was  an  action  by  the  Attorney-General,  at  the  relation  of 
two  shareholders  in  the  defendant  company  and  by  the  two  share- 
holders as  plaintiffs,  claiming  an  injunction  to  restrain  the  com- 
pany from  proceeding  with  their  works. 

By  the  Shrewsbury  (Kingsland)  Bridge  Act,  1873,  the  company 
were  incorporated,  and  were  authorised  to  construct  a  bridge  over 
the  River  Severn,  a  road,  and  other  works,  and   for  this  purpose 


568  ACTION    (KIGHT    (»F). 


No.  6.  —  Attorney-General  v.  Shrewsbury  Bridge  Co. 

t  >  purchase  and  hold  certain  lands,  the  Companies  Clauses  Con- 
solidation Act,  1845,  and  the  Lands  Clauses  Consolidation  Acts 
being  incorporated  with  the  special  Act.  The  special  Act  pro- 
vided that,  if  the  undertaking  should  not  be  completed  within 
live  years  from  the  passing  of  the  Act,  then,  on  the  expiration  of 
that  period,  the  powers  by  the  Act  granted  to  the  company  for 
making  and  completing  the  same,  or  otherwise  in  relation  thereto, 
.should  cease  to  be  exercised,  except  as  to  so  much  thereof  as 
should  be  then  completed  or  executed. 

The  period  of  five  years  expired  on  the  15th. of  May,  1878,  and 
the  company  had  not  within  that  period  completed  the  works 
authorised  by  their  Act. 

The  statement  of  claim  alleged  that,  notwithstanding  the  expira- 
tion of  the  five  years,  the  company  were  proceeding  with  the 
construction  of  the  road,  bridge,  and  other  works  authorised  by 
the  Act,  and  were  interfering  with  roads  and  lands  for  that  pur- 
pose, and  were  expending  the  capital  of  the  company  in  such 
construction,  and  were  threatening  and  intending  to  interfere 
with  public  roads,  ways,  lands,  and  hereditaments  in  the  same 
manner  as  if  they  had  parliamentary  powers  authorising  such 
interference.  The  plaintiffs  further  alleged  that  the  company 
were  about  to  apply  to  Parliament  to  grant  them  new  powers, 
and  to  revive  their  lapsed  powers,  and  that  they  had  already 
spent,  and  intended,  before  obtaining  from  Parliament  powers  in 
that  behalf,  further  to  spend  moneys  raised  under  the  Act  of 
1873,  in  and  about  their  application  to  Parliament.  The  relators 
were  liable  to  pay  further  calls  on  their   shares. 

The  plaintiffs  claimed  an  injunction  to  restrain  the  company 
from  proceeding  with  the  works  originally  authorised  by  the  Act 
of  1873,  and  from  interfering  with  any  roads,  lands,  or  heredita- 
ments for  the  purpose  of  the  said  works,  or  other  purposes  not 
authorised  by  Parliament,  and  from  applying  any  of  the  moneys 
raised,  or  to  be  raised,  under  the  Act  of  1873  for  the  purposes 
aforesaid,  or  in  or  about  their  contemplated  application  to  Parlia- 
ment, or  for  any  other  purpose  not  authorised  1)}'  Parliament. 

On  the  30th  of  January,  1880,  the  plaintiffs  moved  before 
JESSEL,  M.  II.,  for  an  interlocutory  injunction  in  the  terms  of 
their  claim.  There  was  evidence  that  the  company  had  been, 
since  the  expiration  of  the  five  years,  driving  piles  into  the  River 
Severn,  and    interfering    with    a    public    highway,   and    with    the 


SECT.  II.  —  FOR   CAUSE   AFFECTING    PUBLIC.  569 


No.  6.  —  Attorney-General  v.  Shrewsbury  Bridge  Co. 


towing-path  by  the  river;  but  there  was  no  evidence  of  actual 
damage  to  the  public  by  reason  of  these  acts.  The  motion  was 
ordered  to  stand  to  the  trial,  on  the  undertaking  of  the  defendants 
not  to  do  any  works  off  their  own  land,  and  nut  to  expend  any 
moneys  of  the  company.  In  the  session  of  1880,  the  company 
obtained  another  Act,  which  extended  the  time  for  tin;  completion 
of  their  works ;  and  thereupon  the  plaintiffs  agreed  that  the  com- 
pany should  be  relieved  from  their  undertaking.  On  the  17th  of 
April,  1881,  the  plaintiffs  obtained  an  order  giving  them  liberty 
to  discontinue  so  much  of  their  claim  in  the  action  as  related  to 
matters  other  than  the  claim  to  have  the  company  restrained 
before  the  passing  of  the  Act  of  1880  from  executing  works  off 
their  own  land  according  to  the  terms  of  their  undertaking ;  and 
it  was  ordered  that  the  relators  should  pay  so  much  of  the  defen- 
dants' costs  of  the  action  as  had  been  occasioned  by  so  much  of 
the  claim  as  was  discontinued,  including  the  costs  of  the  applica- 
tion for  the  order  of  discontinuance,  and  liberty  was  given  to  the 
plaintiffs  to  amend  their  statement  of  claim,  if  necessary.  On  the 
16th  of  May,  1881,  the  plaintiffs  amended  their  statement  of  claim, 
and  claimed  only  an  injunction  in  the  terms  of  the  undertaking,  so 
far  as  it  related  to  the  execution  of  works  off  the  defendants'  own 
land  before  the  passing  of  the  Act  of  1880,  and  payment  by  the 
defendants  of  the  costs  of  the  action,  other  than  those  already 
ordered  to  be  paid  by  the  relators. 

The  action  now  came  on  for  trial.  The  evidence  was  in  sub- 
stance the  same  as  on  the  hearing  of  the  motion  for  an  injunction. 
The  only  question  was  whether  the  defendants  ought  to  be  ordered 
to  pay  the  costs  claimed. 

W.  Phipson  Beale,  for  the  relators  and  plaintiffs. 

Langworthy,  for  the  defendants.  An  injunction  would  not  be 
granted  unless  substantial  injury  to  the  public  was  proved,  and 
therefore  the  plaintiffs  are  not  entitled  to  costs.  Attorney- General 
v.  Great  Eastern  Raihvay  Company,  11  Ch.  D.  449;  Attorney- 
General  v.  Great  Northern  Railway  Company,  1  Dr.  &  Sin.  154. 

[Fry,  J.,  referred  to  Attorney- General  v.  Ely,  Haddenham,  & 
Sutton  Railway  Company,  Law  Eep.  4  Ch.  194;  Attorney- General 
v.  Cockermouth  Local  Board,  ib.  18  Eq.  172.] 

Fry,  J.  (after  stating  the  facts),  continued:  — 

The  question  which  has  been  mainly  argued  is  this:  Had  the 
Attorney-General  a    right    under    the   circumstances  to  intervene 


.570  ACTION    (ltlGHT    OF). 


No.  6.  —  Attorney-General  v.  Shrewsbury  Bridge  Co. 


without  showing  substantial  injury  to  the  public  ?  It  appears  to 
me  that  there  is  a  conflict  of  authority  on  this  point,  or  rather 
some  want  of  uniformity  in  the  various  authorities.  But  before 
considering  the  authorities,  I  will  make  this  observation.  This  is 
clearly  a  case  in  which  the  defendant  company,  without  any  power 
(for  their  powers  had  come  to  an  end),  thought  tit  to  do  certain  acts 
which  undoubtedly  tended  in  their  nature  to  interfere  with  public 
rights,  and  so  tended  to  injure  the  public.  The  question  is  whether, 
under  such  circumstances,  the  Attorney-General  is  justified  in  inter- 
fering, though  there  is  no  evidence  of  actual  injury  to  the  public. 
In  my  judgment  he  is  entitled  to  do  so,  and  the  Court  is  bound  to 
attend  to  his  interference.  One  of  the  earliest  cases  on  the  subject 
is  A ttomey- General  v.  Oxford,  Worcester;^  Wolverhampton  Railway 
Company,  2  W.  R.  330,  331.  There,  at  the  instance  of  the  Attorney  - 
Genera],  the  Court  restrained  the  opening  of  a  railway  not  author- 
ised by  the  Board  of  Trade;  and  Lord  Romilly,  M.  R.,  said  that 
"  the  view  he  took  of  the  case  was  this,  that  undoubtedly  the 
Attorney-General  might  apply  to  the  Court  in  cases  of  nuisance. 
It  was  properly  said  on  the  other  side  that  in  all  such  cases  the 
Court  required  that  the  nuisance  should  be  proved.  But  lie  was 
also  of  opinion  that  the  Attorney-General,  as  parens  patriae" 
(meaning  thereby,  I  conceive,  as  the  representative  of  the 
parens  putrid1),  "  might  apply  to  the  Court  to  restrain  the  execu- 
tion of  an  illegal  act  of  a  public  nature,  provided  it  was  estab- 
lished that  the  act  was  an  illegal  act  and  it  affected  the  public 
generally."  Again,  in  Attorney-General  v.  Cockermouth  Loral 
Board,  supra,  Jessel,  M.  R.,  refused  to  grant  an  injunction  on 
the  bill,  because  he  came  to  the  conclusion  that  there  was  no 
evidence  of  any  nuisance  resulting  to  the  plaintiffs  from  the 
defendants'  acts.  Nevertheless,  at  the  instance  of  the  Attorney- 
General;  he  granted  an  injunction  to  restrain  the  defendants  from 
polluting  the  water  of  the  river,  because  that  was  expressly  pro- 
hibited by  Act  of  Parliament,  There,  as  in  the  present  case,  there 
was  no  evidence  of  any  actual  injury,  but  there  was  evidence 
that  the  defendants  were  doing  certain  illegal  acts  which  tended 
in  their  nature  to  injure  the  public,  and,  accordingly,  the  injunc- 
tion was  granted  with  costs.  In  the  more  recent  case  of  Attorney- 
General  v.  Great  Eastern  Railway  Company,  supra,  the  learned 
Lords  Justices  appear  to  have  differed  somewhat  in  their  opinions. 
If  they  had  expressed  any  decided  view  affecting  the  present  case, 


SECT.  II. — FOR    CAUSE    AFFECTING    PUBLIC.  571 

No.  6.  —  Attorney-General  v.  Shrewsbury  Bridge  Co.  —  Notes. 

T  need  not  say  that  I  should  have  followed  it  But  having  regard 
to  that  difference  of  opinion,  it  appears  to  me  that  that  case  fur- 
nishes no  distinct  guide  to  me.  But,  when  1  examine  the  judg- 
ment of  Lord  Justice  James,  who  was  the  most  adverse  to  the 
rights  of  the  Attorney-General,  I  think  that,  even  according  to  his 
view,  the  present  action  could  he  maintained  ;  fur,  commenting  on 
Attorney-General  v.  Cockermouth  Loral  Board,  lie  said  (11  Ch.  D. 
483),  "  The  board  were  doing  works  which  would  or  might  probably 
poison  a  running  stream,  in  direct  violation  of  the  law  which  pro- 
hibited them  from  committing  a  nuisance."  Just  as  there  the  acts 
which  were  restrained  without  proof  of  injury  were  acts  which  in 
their  nature  tended  to  injure  the  public,  so,  in  the  present  case,  the 
acts  which  the  Attorney-General  sought  to  restrain  were  in  their 
nature  such  as  tended  to  injure  the  public.  In  coming,  therefore, 
to  the  conclusion  that  this  action  can  be  maintained  without  proof 
of  actual  injury  to  the  public,  1  think  I  am  acting  in  accordance 
with  the  view  of  Lord  Justice  James.  There  is,  moreover,  the  author- 
ity of  Lord  Hatherley  in  Attorney-General  v.  Ely,  Haddenham,  & 
Sutton  Railway  Company,  supra.  He  said  (Law  Rep.  4  Ch.  199) : 
<:  The  question  is,  whether  what  has  been  done  has  been  done  in 
accordance  with  the  law;  if  not,  the  Attorney-General  strictly 
represents  the  whole  of  the  public  in  saying  that  the  law  shall  be 
observed.''  Here  the  law  has  been  broken  in  a  manner  tending 
to  injure  the  public;  and,  in  my  judgment,  the  relators  are  en- 
titled to  costs.  The  costs  have  not  been  increased  by  adding  the 
relators  as  plaintiffs,  and  I  shall  allow  the  whole  of  the  costs  now 
in  dispute. 

ENGLISH  NOTES. 
The  above  decision  of  Fry,  J.,  is  referred  to  by  Lord  Justice  Kay 
in  his  judgment  in  London  Association  of  Shipowners,  &c.  v.  London. 
&n.  Dorks  .Joint  Committee  (C.  A.  1892),  o  Ch.  242,  L'70,  as  an  au- 
thoritative decision  in  which  the  previous  eases  are  collected.  The 
points  of  those  cases  are  sufficiently  stated  in  Mr.  Justice  Fry's  judg- 
ment. The  actual  decision  in  this  case  of  London  Association  of  Ship- 
owners, &c.  is  more  directly  in  point  upon  the  next  rule,  and  will  he 
further  there  noted  (under  No.  7.  post). 

AMERICAN    NOTES. 

Mr.  Pomeroy  undoubtedly  expresses  the  doctrine  correctly  when  lie  savs 
(3  Equity  Jurisprudence,  p.  2078) :  "A  court  of  equity  has  jurisdiction   to 


572  ACTION  (right  of). 


No.  6.  —  Attorney-General  v.  Shrewsbury  Bridge  Co.  —  Notes. 

restrain  existing  or  threatened  public  nuisances  by  injunction,  at  the  suit  of 
the  Attorney-General  in  England,  and  at  the  suit  of  the  .State,  or  the  people, 
or  municipality,  or  some  proper  officer  representing  the  commonwealth,  in 
this  country."  Citing  the  principal  case.  Mr.  Beach  (1  Equity  Jurispru- 
dence, §  742)  is  to  the  same  effect.  This  doctrine  is  declared  in  Newark 
Aqueduct  Board  v.  City  of  Passaic,  45  New  Jersey  Equity  393  ;  18  Atlantic  Rep'r, 
107  ;  People  v.  Vanderbilt,  26  New  York,  287;  Attorney-General  v.  Eau  Claire, 
37  Wisconsin,  400;  Pennsylvania  v.  Wheeling,  fyc,  Bridge  Co.,  13  Howard 
(United  States),  518;  Craig  v.  People,  47  Illinois,  487;  City  of  Newcastle  v. 
Raney,  130  Penn.  St.  546 ;  City  of  Demopolis  v.  Webb,  87  Alabama,  659. 

"This  court  has  jurisdiction  to  restrain  any  purpresture  or  unauthorised 
appropriation  of  the  public  property  to  private  uses,  which  may  amount  to  a 
public  nuisance  or  may  injuriously  affect  or  endanger  the  public  interest.  And 
where  the  officers  intrusted  with  the  protection  of  such  public  interests,  acting 
under  the  sanction  of  their  official  oaths,  believe  the  intended  encroachment 
will  prove  injurious  to  the  navigation  of  the  canals,  private  persons  should  not 
be  permitted  to  interfere  with  the  waters  or  embankments  of  the  canals,  con- 
trary to  law,  upon  a  mere  opinion,  although  under  the  sanction  of  an  oath, 
that  the  intended  trespass  upon  the  public  rights  would  not  be  an  injury  to  the 
public."  (This  was  a  suit  to  restrain  a  cutting  through  a  canal  embankment.) 
Citing  Attorney-General  v.  Johnson,  2  Wils.  Ch.  87  ;  Attorney-General  v.  Cohoes 
Co.,  6  Paige  Chancery  (New  York,  A.  D.  1836),  133;  29  Am.  Dec.  755. 

To  the  same  effect,  Ravenswood  v.  Flemings,  22  West  Virginia,  52 ;  46  Am. 
Rep.  485;  Town  of  Burlington  v.  Sclacarzman,  52  Connecticut,  181 ;  52  Am. 
Rep.  571  (fence  across  a  highway);  Attorney-General  v.  Williams.  140  Massa- 
chusetts, 329;  54  Am.  Rep.  468  (bay-window  over  street);  in  this  case  the 
court  observing:  "It  does  not  in  this  case  appear  affirmatively  that  the  Com- 
monwealth has  sold  all  of  its  land  in  the  neighbourhood  of  the  premises  in 
question,  and  that  it  has  no  direct  pecuniary  interest  in  enforcing  the  stipula- 
tion. But  assuming  the  facts  to  be  so,  it  still  has  a  duty  to  perform  in  this 
respect,"  etc.  So  in  People  v.  Gold  Mining  Co.,  66  California,  138;  56  Am. 
Rep.  80  (obstructing  navigable  stream  by  mining);  People  v.  Booth,  32  New- 
York,  397  (erection  in  a  bay). 

In  Burlington  v.  Schicartzman,  supra,  it  is  said  that  "  the  liability  of  the  town 
to  pay  damages  in  case  a  person  is  injured  by  the  obstruction  is  a  sufficient 
interest  to  enable  it  to  appear  as  plaintiff  in  a  complaint  in  equity  to  prevent 
the  threatened  obstruction." 

But  in  the  case  of  a  stream  already  unnavigable  by  dams  and  bridges,  the 
addition  of  an  erection,  not  in  itself  a  material  obstacle  to  navigation,  may 
not  be  restrained  at  the  suit  of  the  public.  Slate  v.  Carpenter,  68  Wisconsin, 
165 ;  60  Am.  Rep.  848.  The  court  say  :  "  It  seems  that  there  have  always  been 
grave  doubts  as  to  the  interference  by  a  court  of  equity  to  grant  an  injunction 
against  a  threatened  public  nuisance.  Angell's  Water-courses,  §  566;  Attorney- 
General  v.  N.  J.  Railroad  §■  Trans.  Co.,  3  New  Jersey  Equity,  136.  It  is  in  case 
of  public  nuisance  requiring  immediate  suppression  that  the  chancery  courts 
of  the  United  States  have  jurisdiction.  Georgetown  v.  Canal  Co.,  12  Peters, 
91  :   Rowe  v.  Granite  Bridge  Corp.,  21  Pick.  344.     In  other  cases,  courts  of  law 


SECT.  II.  —  FOH    CAUSE    AFFECTING    PUBLIC. 


No.  7.  —  Ricket  v.  Metropolitan  Railway  Co.  —  Rule. 


should  be  appealed  to  when  the  fads  can  be  passed  upon  by  a  jury.  Angell 
Highways,  §  280.  The  jurisdiction  of  a  court  of  equity  to  restrain  public 
nuisances  at  the  suit  of  the  Attorney-General  is  one  of  greal  delicacy,  and 
should  not  be  exercised  except  to  arrest  irreparable  injury.  Angell  Highways, 
ij  l'sl*.  So  the  sale  of  adulterated  teas  will  not  be  restrained  h\  injunction, 
unless  it  appears  to  threaten  serious  danger  to  human  life  or  serious  del  rimenl 
to  health.  Health  Department  v.  Pardon,  99  New  York,  2-57;  52  Am.  Hep.  l'_'. 
The  doubts  expressed  by  the  Chancellor  in  Attorney-General  v.  Ni  w  Jem  y 
R.  ;V  Trails.  Co.,  supra  (A.  1).  1S:)1.  case  of  a  railroad  bridge  across  a  river), 
and  his  assertion  that  the  equity  jurisdiction  "  has  rarely  been  exercised," 
have  been  dissipated  and  contradicted  by  the  later  course  of  adjudication.  In 
this  case  the  bridge  had  been  practically  finished,  and  he  held  that  it  could 
not  be  removed;  but  this  doctrine  does  not  now  prevail. 


No.  7.—  RICKET   v.   METROPOLITAN    RAILWAY  CO. 
(li.  L.  1867.) 

RULE. 

(a)  Where  the  loss  sustained  by  an  individual  by  reason 
of  an  alleged  public  nuisance  (for  which  an  indictment 
would  lie)  is  not  distinguishable  in  character  from  that 
suffered  by  the  public  generally,  the  individual  has  not  in 
respect  of  that  loss  alright  of  action  against  the  person 
causing;  the  nuisance. 

(b)  Inconvenience  suffered  through  erections  of  a  tem- 
porary character  made  on  neighbouring  premises,  which  are 
necessary  to  the  construction  of  lawful  works  there,  does 
not  form  an  actionable  ground  of  complaint  at  common 
law. 

(c)  Held  by  the  House  of  Lords  (diss.  Lord  Westbury) 
that,  where  damage  sustained  by  operations, of  a  railway 
company  is  such  as  would  not  have  been  actional  tie  at 
common  law,  the  compensation  clauses  (under  the  Lands 
Clauses  and  Railways  Clauses  Consolidation  Acts)  for 
lands,  &c,  "injuriously  affected"  do  not  give  any  right  to 
compensation. 


574  ACTION  (right  of). 


No.  7.  —  Racket  v.  Metropolitan  Railway  Co. 


Ricket  v.  Metropolitan  Ry.  Co. 

L.  R,  2  H.  L.  175   (s.  c.  3G  L.  J.  Q.  B.  205). 

This  was  a  proceeding  in  error  upon  a  decision  of  the  Exchequer 
Chamber  which  had  reversed  a  previous  decision  of  the  Court  of 
Queen's  Bench. 

Ricket  was  the  occupier  of  a  public-house,  with  the  sign  of  the 
Pickled  Egg,  situated  in  a  place  formerly  called  Pickled  Egg  Walk, 
but  now  known  as  Crawford  Passage;  and  he  complained  of  injury- 
occasioned  to  his  business  by  the  works  of  the  defendants.  The 
position  of  the  premises  was  this  :  The  main  thoroughfare,  from  the 
top  of  St.  John  Street  westward  to  Liquorpond  Street,  went  along  a 
street  called  Bowling  Green  Lane,  which,  at  its  western  extremity,, 
came  upon  a  broad  road  called  Coppice  Row.  Opposite  the  end  of 
Bowling  G-reen  Lane  was  Clerkenwell  workhouse,  under  one  end  of 
which  was  a  footway  which  led  the  foot-passenger  to  Crawford 
Passage,  at  a  spot  directly  in  face  of  the  Pickled  Egg  public-house,, 
whence  there  was  a  descending  pathway,  made  wide  enough  at 
the  bottom  to  admit  carts,  and  opening  upon  Back  Hill,  which  led 
up  to  Liquorpond  Street.  The  defendants,  under  the  authority  of 
their  Acts,  blocked  up  the  carriage-wTay  of  Bowling  Green  Lane 
and  Coppice  Row,  and  erected  hoardings,  but  gave  a  passage  to 
foot-passengers  by  steps  and  a  temporary  bridge  across  Coppice 
Row  to  the  passage  which  led  to  the  plaintiffs  house,  and  at  the 
same  time  made  another  communication  in  a  diagonal  line,  which 
enabled  any  one  to  go  by  a  shorter  route  from  the  end  of  Bowling 
Green  Lane  to  the  foot  of  Back  Hill.  These  hoardings  and  steps- 
were  continued  for  twenty  months,  and  then  the  streets  and 
passages  were  restored  to  their  original  condition. 

Ricket  complained  that  his  business-  had  been  injured  by  the 
obstructions,  and,  under  the  provisions  of  the  8  &  9  Vict.,  c,  18  and 
c.  20  (the  Lands  Clauses  and  the  Railways  Clauses  Acts),  sought 
compensation.1     The  case  in  the  first  instance  was  heard  before 

1  8  &  9  Vict.  c.  18,  §  68,  contains  these  8  &  9  Vict  c.  20,  §  6:  The  Railways 
expressions:  "  If  any  party  shall  been-  Clauses  Consolidation  Act,  1845.  "  In  ex- 
titled  to  any  compensation  in  respect  of  ercising  the  powers,  given  to  the  company 
any  lands  or  of  any  interest,  therein,  which  by  the  special  Act,  to  construct  the  rail- 
shall  have  been  taken  for,  or  injuriously  way,  and  to  take  lands  for  that  purpose-; 
affected  by,  the  execution  of  the  works,"  the  company  shall  be  subject  to  the  provis- 
he  is  to  follow  the  course  therein  directed  ions  and  restrictions  contained  in  this  Act, 
as  to  having  a  jury  summoned,  &c.  That  and  in  the  said  Lands  Clauses  Consolida- 
had  been  done  in  this  case-  tf        '  •■      -md  the  company  shall  make  to- 


SECT.  II.  —  FOR   CAUSE   AFFECTING   PUBLIC.  575 

No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 

the  under  sheriff  and  a  jury,  and  the  two  questions  left  were 
these:  First,  whether  the  structure  of  the  house  and  premises, 
or  any  part  thereof,  had  heen  injured  or  injuriously  affected  by 
the  railway  works,  or  in  the  execution  of  any  of  these  works. 
Secondly,  with  respect  to  a  claim  for  loss  of  profits,  whether,  by 
reason  of  the  obstruction  of  the  carriage-way  of  Coppice  Row,  the 
plaintiff  had  sustained  any  particular  damage  or  injury.  The  jury 
found  that  there  was  no  damage  done  to  the  structure  of  the  house 
or  premises,  but  that  the  plaintiff  had  sustained  damage  in  respect 
of  the  interruption  to  his  business,  and  so  gave  a  verdict  for  him 
on  that  matter  for  the  sum  of  £100.  The  case  was  afterwards 
removed  into  the  Court  of  Queen's  Bench  by  certiorari.  The  facts 
were  turned  into  a  special  case,  and  the  question  for  the  opinion 
of  the  Court  was  "  whether  the  loss  of  customers  by  the  plaintiff 
in  his  trade,  under  the  above  circumstances,  was  such  damage  as 
entitled  him  to  recover  from  the  company  ? "  The  Court  of 
Queen's  Bench,  consisting  of  four  judges,  on  the  22nd  April,  1864, 
unanimously  gave  judgment  in  favour  of  Eicket.  The  case  was 
taken  on  error  to  the  Exchequer  Chamber,  where  it  was  heard  by 
six  judges,  four  of  whom  were  for  reversing,  and  two  for  affirming 
the  judgment  of  the  Court  below,  5  B.  &  8.  149-156 ;  34  L.  J. 
(Q.  B.)  257.  It  was  therefore  reversed.  Error  was  then  brought 
to  this  House. 

The  case  having  been  argued, 

The  Lord  Chancellor  (Lord  Chelmsford),  after  fully  stating 
the  case,  said,  It  is  most  desirable,  as  Lord  Chief  Justice  Erle  said 
in  the  case  of  Cameron  v.  The  Charing  Cross  Railway  Company,  16 
C.  B.  (N.  S.)  430,  "  that,  if  possible,  some  definite  and  precise  rule 
should  be  laid  down  as  to  the  true  limits   within  which   claims 

the  owners  and  occupiers  of,  and  all  other  tion  to  be  ascertained  as  provided  in  The 
parties  interested  in,  any  lands  taken  or  Lands  Clauses  Consolidation  Act. 
used  for  the  purposes  of  the  railway  or  §  16,  after  giving  powers  to  execute 
injuriously  affected  by  the  construction  works,  goes  on  tints:  "Provided  always, 
thereof,  full  compensation  for  the  value  of  that  in  the  execution  of  the  powers  by 
fKe  lands  so  taken  or  used,  and  for  all  this  or  the  special  Act  granted,  the  corn- 
damage  sustained  by  such  owners,  occu-  pany  shall  do  as  little  damage  as  can  be, 
piers,  and  other  parties,  by  reason  of  the  and  shall  make  full  satisfaction  in  manner 
exercise,  as  regards  such  lauds,  of  the  herein,  and  in  the  special  Act,  and  any 
powers  by  this  or  the  special  Act,  or  any  Act  incorporated  therewith  provided,  to 
Act  incorporated  therewith,  vested  in  the  all  parties  interested  for  all  damage  by  them 
company,"  the  amount  of  such  compensa-  sustained  by  reason  of  the  exercise  of  suck 

powers." 


576  ACTION   (right  of). 


No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 


against  railway  and  other  companies  for  compensation  in  respect 
of  damage  caused  by  their  works  are  to  be  confined." 

It  appears  to  me  to  be  a  hopeless  task  to  attempt  to  reconcile 
the  cases  upon  the  subject,  I  must  endeavour  by  an  examina- 
tion of  them  to  determine  which,  in  my  judgment,  are  most  in 
accordance  with  principle. 

I  think  that  the  criterion  of  a  party's  right  to  damages  under 
the  clauses  of  The  Eailway  Companies'  Acts,  upon  which  this  case 
depends,  is  correctly  stated  by  Lord  Campbell  in  Re  Penny  &  The 
Soutli  Eastern  Railway  Company,  —  7  E.  &  B.  660,  and  that, 
in  his  words,  "  unless  the  particular  injury  would  have  been 
actionable  before  the  company  had  acquired  their  statutory 
powers,  it  is  not  an  injury  for  which  compensation  can  be  claimed." 
At  the  same  time  the  observation  of  my  noble  and  learned  friend 
Lord  Cranworth,  in  the  case  of  Ogilvy  v.  The  Caledonian  Railway 
Company,  2  Macq.  Sc.  App.  235,  must  not  lie  lost  sight  of, 
that  "  it  does  not  follow  that  a  party  would  have  a  right  to  com- 
pensation in  some  cases  in  which,  if  the  Act  of  Parliament  had  not 
passed,  there  might  have  been  not  only  an  indictment  but  a  right 
of  action." 

In  the  first  place,  then,  it  is  material  to  inquire  whether  the 
plaintiff  in  error  could  have  maintained  an  action  against  the  com- 
pany for  the  alleged  consequences  of  their  acts  if  they  had  been 
done  without  the  authority  of  Parliament. 

As  far  as  I  have  been  able  to  examine  the  cases,  in  all  of  them 
except  two,  in  which  an  individual  has  been  allowed  to  maintain  an 
action  for  damage  which  he  has  specially  sustained  by  the  obstruc- 
tion of  a  highway,  the  injury  complained  of  has  been  personal  to 
himself,  either  immediately  or  by  immediate  consequence. 

The  two  excepted  cases  are  those  of  Raker  v.  Moore,  mentioned 
by  Gould,  J.,  in  Iveson  v.  Moore,  1  Ld.  Eaym.  480,  41)1,  and  Wills 
v.  The  Hungerford  Market  Company,  2  Bing.  N.  C.  281.  In  the 
former  of  these  cases  the  defendant  had  erected  a  wall  across 
a  public  way,  in  consequence  of  which  several  of  the  plaintiff's 
tenants  left  his  houses,  and  he  lost  the  profits  of  them.  In  the 
latter,  the  plaintiff,  a  bookseller,  having  a  shop  by  the  side  of  a 
public  thoroughfare,  suffered  loss  in  his  business  in  consequence 
of  passengers  having  been  diverted  from  the  thoroughfare  by  the 
defendant's  continuing  an  authorised  obstruction  across  it  for  an 
unreasonable  time.     In  both  these  cases  it  was  held  that  the  action 


SECT.  II.  —  FOR   CAUSE    AFFECTING    PUBLIC.  571 

No.  7.  —  Rickst  v.   Metropolitan  Railway  Co. 

was  maintainable.  The  case  of  Baker  v.  Moore,  supra,  appears  to  me 
to  be  even  more  doubtful  than  that  of  Wills  v.  The  Hungerford  Mar- 
ket Company,  supra  ;  and  as  to  this  latter  ease,  Erle,  C.  J.,  in  deliv- 
ering the  judgment  of  the  majority  of  the  Judges  in  the  present 

rase,  observed,  5  15.  &  8.  161,  "  If  the  question  were  raised  in  an 
action  now,  we  think  it  probable  that  the  action  would  fail,  both 
from  the  effect  of  the  cases  which  preceded  Wilks  v.  The  Hunger- 
ford  Market  Company,  and  also  from  the  reasoning  in  the  judgment 
in  Ogilvyv.  The  Caledonian  Railway  Company.  In  this  observa- 
tion upon  Wilks's  Case  I  entirely  agree.  An  endeavour  was  made 
by  Lord  Denman  to  reconcile  that  case  with  the  decision  which 
he  pronounced  in  the  case  of  Rex  v.  The  London  Dock  Company,  5 
Ad.  &  E.  163,  ITS  ;  hut',  in  my  opinion,  not  very  successfully.  It  is 
impossible  to  discover  any  distinction  between  the  consequential 
damage  which  constituted  the  cause  of  action  respectively  in  the 
two  cases.  Lord  Denman  said,  "In  Wilks's  Case  the  act  produc- 
ing the  injury  was  unauthorised  by  any  statute  for  the  period 
complained  of ;  it  was  a  public  nuisance,  which  might  have  been 
indicted,  and  that  was  the  difficulty  cast  upon  the  plaintiff.  To 
which  a  sufficient  answer  was  given  by  showing  that  the  specific 
injury  of  which  he  complained  was  one  felt  by  himself  alone, 
and  beyond  the  common  and  public  nuisance."  If,  however,  the 
consequential  damage  is  too  remote  to  be  the  foundation  of  an 
action,  —  as  it  was  held  to  be  in  the  case  oiRexv.  The  London 
Docks  Company,  —  it  is  quite  immaterial  whether  no  statutory 
powers  have  been  given,  or  the  given  statutory  powers  have  been 
exceeded.     In  neither  case  would  an  action  lie. 

My  opinion  being  that  the  damage,  which  is  the  foundation  of 
the  claim  to  compensation  made  by  the  plaintiff  in  error,  is  too 
remote  to  be  the  subject  of  an  action,  I  might  be  contented  to  re  4  my 
judgment  against  him  upon  this  ground  alone.  But  the  diversity 
of  opinion  which  has  prevailed  amongst  the  Judges  as  to  the  ap- 
plication of  the  clauses  of  the  Acts  in  question  to  such  a  claim  as 
is  now  under  consideration  renders  it  almost  imperative  upon  the 
House  to  pronounce  an  authoritative  final  decision  upon  the  whole 
case. 

Before,  however,  expressing  my  opinion,  I  must  shortly  exam- 
ine the  leading  cases  which  exhibit  the  variety  of  judgment  in  the 
different  courts  upon  the  construction  of  the  clauses  in  question. 

It  must  be  observed  that  the  Judges  in  the  Court  of  Queen's 
vol.  i.— 37 


578  ACTION  (right  of). 


No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 


Bench,  in  the  present  case,  confined  their  attention  entirely  to  the 
68th  section  of  The  Lands  Clauses  Consolidation  Act,  1845,  which 
provides  for  the  mode  of  assessing  compensation  ;  while  in  the  argu- 
ment at  your  Lordships'  bar,  the  claim  of  the  plaintiff  in  error  was 
rested  either  upon  the  6th  or  the  16th  section  of  The  Railways 
Clauses  Consolidation  Act,  1845.  There  appears  to  me,  however,  to 
be  no  substantial  difference  between  the  language  of  the  68th  sec- 
tion of  the  former  and  the  6th  section  of  the  latter  Act.  The  68th 
section  of  the  one  Act  applies  to  any  party  entitled  to  compensation 
in  respect  of  any  lands,  or  of  any  interest  therein,  which  shall  have 
been  taken  for,  or  injuriously  affected  by,  the  execution  of  the  works  ; 
and  the  6th  section  of  the  other  Act  compels  a  company  to  make 
to  the  owners  and  occupiers,  and  all  other  parties  interested  in  any 
lands  taken  or  used  for  the  purposes  of  the  railway,  or  injuriously 
affected  by  the  construction  thereof,  full  compensation  for  the 
value  of  the  lands,  and  for  all  damage  sustained  by  reason  of  the 
exercise,  as  regards  such  lands,  of  the  powers  vested  in  the  com- 
pany. These  sections  appear  to  me  to  apply,  not  to  temporary,  but 
to  permanent  works  of  companies.  The  16th  section  of  The  Rail- 
ways Clauses  Consolidation  Act,  which  I  shall  have  occasion  here- 
after to  consider,  more  particularly  relates  to  the  damage  arising 
during  the  execution  of  the  works. 

Upon  an  examination  of  the  cases,  it  will  be  seen  that  in  most 
of  them,  where  the  claim  to  compensation  was  admitted,  there 
was  an  actual  injury  to  the  house  or  land  itself,  either  immediate 
or  immediately  consequential  upon  the  acts  done.  Thus,  in  Reg.  v. 
The  Eastern  Counties  Railway  Company,  2  Q.  B.  347,  the  Railway 
Act  provided  that  the  company  should  make  full  satisfaction  to 
persons  interested  in  lands  taken,  used,  or  injured,  for  all  damages 
sustained  by  executing  the  powers  of  the  Act,  The  company  had 
lowered  a  road,  whereby  the  claimant's  land  was  injured  and  dete- 
riorated, the  access  impeded,  and  additional  fences  rendered  neces- 
sary. In  Clover  v.  The  North  Staffordshire  Railway  Company,  lb 
Q.  B.  912,  the  plaintiff  was  the  owner  of  land,  appertaining  to 
which  was  a  right  of  way  over  a  road.  The  company,  under  the 
provisions  of  their  Act,  constructed-  a  railway  crossing  the  road  on 
a  level,  and  erected  gates  on  the  road  at  each  side  of  the  railway, 
which  were  kept  locked,  under  the  provisions  of  the  Act,  the  ser- 
vant of  the  company  keeping  the  key  and  the  plaintiff  also  hav- 
ing a  key.     The  plaintiff  claimed  compensation,  and  required  the 


SECT.  II.  —  FOR    CAUSE   AFFECTING    PUBLIC.  579 

No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 

company  to  issue,  a  warrant  for  a  jury,  and,  upon  their  neglect, 
brought  debt  for  the  amount  claimed.  The  jury  found  the  fads 
specially,  and  also  that  the  land  was  depreciated  in  value.  The 
Court  held  that  the  land  was  injuriously  affected,  within  the  mean- 
ins  of  The  Lands  Clauses  Consolidation  Act  and  The  Railways 
Clauses  Consolidation  Act.  It  might  appear  at  first  sight  that 
the  decision  in  the  case  of  Ogilvy  v.  The  Caledonian  Railway 
Company  was  opposed  to  this  last  case.  There  a  public  road  was, 
under  the  sanction  of  Parliament,  crossed  by  a  railway  on  a  level, 
and  gates  were  placed  across  the  road  ;  and  it  wTas  held  by  this 
House,  reversing  the  interlocutor  of  the  Court  of  Session,  that  the 
owner  of  a  house  near  the  newly  erected  gates  had  no  claim  for 
compensation  for  the  inconveniencies  occasioned  to  him.  But,  in 
this  last  case,  the  owner  of  the  house  had  no  other  right  over  the 
road  than  that  which  belonged  to  the  public  generally,  and  the 
erection  of  the  gates  across  the  road  where  the  railway  crossed  it 
upon  a  level  was  essential  to  the  public  safety.  It  is  doubtful 
whether  the  owner  of  the  house  sustained  any  injury  different  in 
kind,  though  it  might  be  greater  in  degree,  from  that  of  the  rest 
of  the  public,  and  therefore  it  was  questionable  whether  he  could 
have  maintained  an  action  if  the  obstruction  had  been  created 
without  the  authority  of  Parliament.  But  in  Glover  v.  The  North. 
Staffordshire  Railway  Company,  the  plaintiff  had  a  private  way 
appurtenant  to  his  farm,  which  was  obstructed  by  the  company's 
works.  His  land,  therefore,  was  injuriously  affected,  and  as  Mr. 
Justice  WlGHTMAN  said,  "Supposing  no  act  of  Parliament  had 
passed,  and  that  had  been  done  which  was  done,  an  action  would 
have  been  maintainable."  The  case  of  Reg.  v.  The  Great  Northern 
Railway  Company,  14  Q.  B.  25,  resembles  the  one  last  mentioned, 
because  the  manner  in  which  the  land  was  alleged  to  be  injuriously 
affected  was  by  the  wrorks  of  the  company  obstructing  the  access 
to  a  ferry  which  was  appurtenant  to  the  claimant's  house. 

The  twTo  cases  next  to  be  considered  are  those  upon  the  author- 
ity of  which  the  Court  of  Queen's  Bench  (or,  at  all  events,  the 
Lord  Chief  Justice)  decided  the  present  case,  Chamberlain  v.  The 
West  End  of  London  and  Crystal  Palace  Railway  Company.  2  B. 
&  S.  605-617,  and  Senior  v.  The  Metropolitan  Railway  Company, 
2  H.  &  C.  258.  Chamberlain' 's  Case  was  a  claim  for  compensation, 
which  was  referred  to  arbitration  under  The  Lands  Clauses  Con- 
solidation Act.     The  award  that  the  claimant  was  lessee 


580  ACTION   (right  of). 


No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 


of  four  houses  on  the  highway,  across  which  the  railway  was  con- 
structed, and  of 'eight  other  houses  in  the  course  of  erection  for 
the  purpose  of  being  used  as  dwelling-houses  fronting  the  new 
road,  running  at  right  angles  to  the  highway,  and  that  by  reason 
of  the  obstruction  of  the  highway  by  the  construction  of  the  rail- 
way across  the  same,  the  access  to  the  houses  of  the  plaintiff  was, 
notwithstanding  the  substitution  of  the  deviation  road,  rendered 
less  convenient  for  the  occupiers ;  and  many  persons  would  be 
prevented  from  passing  the  same,  and  the  houses  had  thereby 
been  rendered  less  suitable  for  being  used  and  occupied  as  shops, 
and  the  value  of  the  houses  had  been  greatly  diminished.  The 
Court  of  Queen's  Bench  gave  judgment  for  the  plaintiff,  without 
saying  upon  which  of  the  heads  of  damage  they  thought  he  was 
entitled  to  compensation.  But  upon  error  in  the  Exchequer 
Chamber,  Chief  Justice  Erle,  in  delivering  the  opinion  of  the 
Court  of  Error  that  the  judgment  of  the  Court  below  ought  to  lie 
affirmed,  relied  entirely  upon  the  facts  found  by  the  umpire,  that 
the  value  of  the  houses  was  depreciated  because  the  highway  was 
stopped  up,  and  the  easy  access  which  before  existed  to  them  was 
taken  away  ;  that  the  houses  were  therefore  injuriously  affected 
within  the  words  of  the  enactment  referred  to,  and  within  the 
principle  of  law  which  governs  cases  of  this  description.  This 
case  must  therefore  be  classed  with  the  preceding  cases,  where 
the  house  or  land  of  the  person  claiming  compensation  was  itself 
injuriously  affected  by  their  works.  But  the  case  of  Senior  v. 
The  Metropolitan  Railway  Company  cannot  be  otherwise  regarded 
than  as  precisely  resembling  the  present.  There  the  plaintiff 
carried  on  the  business  of  a  tailor,  selling  ready-made  clothes, 
exhibited  by  him  in  a  window  of  his  shop  in  Kay  Street.  The 
company,  in  the  execution  of  works  (in  the  neighbourhood  of 
those  in  the  present  case),  stopped  up  a  bridgeway,  loading  from 
Bay  Street  to  Warner  Street,  and  blocked  up  the  carriage-way,  and 
partially  obstructed  the  footway  of  the  street  called  Coppice  Row, 
and  in  consequence  Bay  Street  was  less  used  and  frequented  as  a 
thoroughfare,  and  the  number  of  persons  passing  through  the 
street  was  considerably  diminished.  During  this  period  the 
plaintiff's  business  fell  off,  principally  in  respect  of  the  sale  in 
the  shop,  and  was  less  than  it  had  been  before  the  obstruction, 
and  less  than  since  it  had  been  removed.  Upon  the  inquiry  be- 
fore the  sheriff,  the  jurymen  found  (as  in  this  case)  that  no  struc- 


SECT.  II.  —  FOR    CAUSE   AFFECTING    PUBLIC.  581 

No.  7.       Ricket  v.  Metropolitan  Railway  Co. 


tural  damage  had  been  sustained  ;  and  they  stated,  in  delivering 
their  verdict,  that  they  assessed  the  compensation  at  the  sum  of 
£60  for  the  loss  Of  trade  by  reason  of  such  obstruction  only,  and  not 
for  any  other  matter  or  cause.  The  Barons  of  the  Exchequer  agreed 
that  the  plaintiff  was  entitled  to  judgment  for  the  £60,  but  ap- 
parently not  exactly  for  the  same  reasons.  The  Chief  Baron  said 
"that  loss  of  trade  was  an  injury  to  the  value  of  the  land  itself, 
and  therefore  the  subject  of  compensation  under  The  Lands  Clauses 
Consolidation  Act."  Baron  Bramwell  thought  the  case  was  de- 
cided by  the  case  of  Chamberlain  v.  The  West  End  of  Land  mi  and 
Crystal  Palace  Railway  Company,  from  which  it  appears  to  me  to 
be  distinguishable  for  the  reasons  which  I  have  given.  Baron 
Channell,  adverting  to  an  argument  for  the  company,  that  loss 
of  trade,  though  some  evidence  of  injury  to  the  plaintiffs  interest, 
might  be  counterbalanced  by  other  considerations,  said,  "  Those 
considerations  ought  at  least  to  have  been  stated  in  the  case,  so 
as  to  enable  us  to  deal  with  them.  The  present  unqualified  state- 
ment shows  that,  in  point  of  fact,  the  plaintiffs  premises  were 
injuriously  affected  by  the  execution  of  the  defendants'  works." 
Baron  Wilde  dealt  only  with  the  company's  claim  to  a  set-off,  by 
reason  of  the  land  being  subsequently  benefited,  without  adding  a 
word  upon  the  main  question. 

This  case,  then,  in  which  the  judgments  are  not  very  satisfac- 
tory, is  the  only  direct  authority  against  the  judgment  of  the 
Court  of  Exchequer  Chamber  under  consideration.  When  I  say 
the  only  authority,  I  have  not  forgotten  the  case  of  Cameron  v. 
The  Charing  Cross  Railway  Company,  where,  upon  a  similar  state 
of  facts,  the  Court  gave  judgment  for  the  plaintiff.  But  the  Chief 
Justice  stated  that  the  Court  decided  against  the  argument  on  the 
part  of  the  company  on  the  ground  that  the  matter  had  already 
undergone  consideration  in  two  Courts  of  co-ordinate  jurisdiction, 
by  whose  judgment  they  were  bound,  the  Chief  Justice  being 
evidently  not  satisfied  with  those  decisions. 

Thus  the  question  stands  upon  the  cases  relied  upon  in  the  ar- 
gument of  the  plaintiff  in  error,  and  if  I  am  right  in  treating  the 
decision  in  Senior  v.  The  Metropolitan  Railway  Company  as  the 
only  one  which  can  be  regarded  as  a  direct  authority  in  his  favour, 
there  is  opposed  to  that  decision  the  case  of  Rex  v.  The  London 
Docks  Company,  5  Ad.  &E.  163,  which  is  at  least  an  equally  strong 
authority  the  other  way.     The  words  of  the  Act  upon  which  the  com- 


582  ACTION    (RIGHT   OF). 


No.  7.  —  Kicket  v.  Metropolitan  Railway  Co. 


pensation  was  claimed  in  that  case  appear  to  me  not  to  make  any- 
substantial  difference  between  the  two  cases.  I-t  was  enacted  that 
if  any  person  should  be  injured  in  his  estate  or  interest  by  the  mak- 
ing of  any  cut,  sluice,  bridge,  road,  or  other  work,  such  person  should 
be  compensated  by  the  company  for  such  injury.  The  company,  un- 
der the  powers  of  their  Act,  pulled  down  a  number  of  houses,  and 
made  a  cut  which  intercepted  several  thoroughfares,  and  obliged 
those  who  had  previously  used  them  to  take  circuitous  routes. 
The  tenants  of  a  neighbouring  public-hcuse  demanded  compensa- 
tion for  injury  to  their  estate  and  interest,  inasmuch  as  the  pulling 
down  of  premises  and  the  obstruction  of  access  had  diminished 
the  direct  and  casual  custom  of  the  house,  and  also,  as  the  occu- 
piers of  houses  were  cut  off  from  thoroughfares  to  the  houses 
formerly  used,  and  thereby  the  value  of  the  premises  to  sell  or 
let  as  a  public-house  or  shop,  but  not  as  a  private  residence,  was 
lessened.  Lord  DENMAN  in  delivering  the  judgment  of  the  Court 
of  King's  Bench,  said,  "  It  is  distinctly  stated  that  it  is  only  to 
sell  or  let  as  a  public-house  or  shop,  —  in  other  words,  in  respect  of 
its  goodwill,  —  that  the  pecuniary  value  of  the  house  is  diminished ;" 
and  added,  "We  are  of  opinion  that  the  case  of  the  complainant  is 
not  brought  within  any  reasonable  construction  of  the  section. 
The  inconvenience  they  complain  of  is  not  only  one  common  in  a 
greater  or  less  degree  to  every  inhabitant  in  the  neighbourhood, 
but  it  is  the  necessary  consequence  of  the  lawful  act  done  by  the 
company.  It  was  impossible  to  make  the  basin  and  cut,  which  it  is 
the  very  object  of  the  statute  to  enable  the  company  to  make, 
without  destroying  the  neighbourhood  and  stopping  up  these 
thoroughfares." 

Such  was  the  state  of  the  authorities  when  the  present  case  was 
decided,  in  which  the  four  Judges  of  the  Court  of  Queen's  Bench 
and  two  of  the  Judges  in  the  Court  of  Error  were  opposed  to  the 
majority,  consisting  of  four  Judges,  in  the  Exchequer  Chamber. 

The  question  entirely  depends  upon  the  correct  construction 
of  the  compensation  clauses  of  The  Lands  Clauses  and  Railways 
Clauses  Consolidation  Acts.  I  have  already  observed  that  the 
6th  section  of  The  Railway  Clauses  Act  and  the  68th  section  of 
The  Lands  Clauses  Act  have  the  same  object,  and  apply  to  the 
permanent  works  of  companies.  The  case  was  argued  at  your 
Lordships'  bar,  both  upon  the  Gth  and  16th  sections  of  The  Bail- 
ways  Clauses  Act ;  but,  in  my  opinion,  the  6th   section  is  inappli- 


SECT.  II.  —  FOB    CAUSE   EFFECTING    PUBLIC.  583 


No.  7.  —  Kicket  v.  Metropolitan  Bailway  Co. 


■  •able.  It  relates  to  "  owners  and  occupiers  of,  and  all  other  persons 
interested  in,  any  lands  taken  or  used  for  the  purposes  of  the  railway, 
or  injuriously  affected  by  the  construction  thereof  "  (not  in  the 
course  of  construction  thereof),  "and  the  company  arc  to  make 
full  compensation  for  the  value  of  the  lands  so  taken  or  used,  and 
for  all  damages  sustained  by  such  owners,  occupiers,  and  other 
parties,  by  reason  of  the  exercise,  as  regards  such  lands,  of  the 
powers  vested  in  the  company."  This  evidently  applies  to  lands 
immediately  affected  by  the  permanent  construction  of  the  railway. 

The  16th  section  is  the  one  which,  if  any,  must  apply  to  the  case 
of  the  plaintiff' in  error.  That  section  empowers  the  company  fer- 
tile purpose  of  constructing  the  railway  to  execute  certain  speci- 
fied works,  and  contains  a  proviso  that  in  the  exercise  of  the  pow- 
ers granted,  "The  company  shall  do  as  little  damage  as  can  he, 
and  make  full  satisfaction  to  all  parties  interested  for  all  damage 
by  them  sustained  by  reason  of  the  exercise  of  such  powers." 
That  the  damage  contemplated  was  not  such  a  consequential  dam- 
age as  that  on  which  the  plaintiff's  claim  is  founded  is  at  least 
probable  from  the  circumstances  adverted  to  by  Lord  DENMAN  in 
Rex  v.  The  London  Docks  Company,  that  as  it  was  impossible  to 
make  the  railway  without  obstructing,  at  least  temporarily,  the 
neighbourhood  and  stopping  up  the  thoroughfares,  that  necessary 
consequence  must  have  been  foreseen ;  and  if  it  had  been  intended 
to  give  any  compensation  for  it,  that  intention  would  have  been 
clearly  and  distinctly  expressed.  And  a  critical  examination  of 
the  words  of  the  section  leads  to  the  conclusion  that  compensation 
for  remote  consequences  resulting  from  a  company's  works  was 
not  intended.  The  words  are,  "  shall  do  as  little  damage  as  can 
be;"  which,  if  applying  to  a  consequential  injury,  would  appear 
to  limit  the  resulting  damage  to  an  immediate  consequence,  and 
not  to  extend  to  a  remote  one. 

The  case  of  The  East  and  West  India  Docks  and  Birmingham 
Junction  Bailway  v.  Gattke,  3  Mac.  &  G.  155  ;  6  Railw.  Cas.  371, 
before  Lord  Truro,  may  seem  at  first  sight  to  be  an  authority  for  a 
party  being  entitled  to  compensation  for  the  same  sort  of  remote 
damage  as  that  in  the  present  case.  There  the  directors  of  the 
company  had  commenced  their  works,  and  were,  at  the  date  of  the 
riling  of  the  bill,  in  the  course  of  constructing  their  railway  ;  and 
one  of  the  grounds  of  complaint  was  that  the  defendant's 
customers  had  been  compelled,  by  the  obstruction  occasioned  by 


584  ACTION  (right  of). 


No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 


the  works,  to  quit  the  side  of  the  road  upon  which  the  defendant's 
shop  was  situated  before  the  works  arrived  at  his  shop,  and  to 
cross  to  the  opposite  side  of  the  road  in  order  to  pass  along;  by 
reason  whereof,  during  several  weeks,  he  had  sustained  a  great 
loss  in  his  trade.  The  Lord  Chancellor  dissolved  an  injunction 
which  had  been  granted  by  Vice  Chancellor  Wigram,  and  allowed 
the  plaintiff  in  the  action  (the  defendant  before  him)  to  proceed  to 
have  the  amount  of  compensation  assessed  by  a  jury.  But  in 
addition  to  the  above-mentioned  ground  of  complaint,  the  plaintiff 
in  that  case  alleged  that  he  had  sustained  injury  in  consequence 
of  the  dust  and  dirt  occasioned  by  the  works  having  damaged  his 
goods ;  and  he  also  alleged  that  he  had  been  injuriously  affected 
and  injured  by  the  company  having  stopped  up  a  passage  or  lane, 
along  which  he  was  entitled  to  a  right  of  way  or  access  to  the 
entrance  at  the  back  of  his  premises,  both  of  which  were  direct 
and  not  consequential  injuries.  And  the  Lord  Chancellor,  with- 
out distinguishing  the  heads  of  claims,  said,  "  I  see  no  reasonable 
doubt  that  if  the  defendant  has,  in  fact,  sustained  damage  from 
the  causes  alleged,  he  is  a  person  entitled  to  claim  compensation, 
and  that  he  is  entitled  to  have  the  question  submitted  to  a  jury." 
Upon  a  review  of  all  the  authorities,  and  upon  a  consideration  of 
the  sections  of  the  statutes  relating  to  this  subject,  I  have  satisfied 
myself  that  the  temporary  obstruction  of  the  highway  which  pre- 
vented the  free  passage  of  persons  along  it,  and  so  incidentally 
interrupted  the  resort  to  the  plaintiffs  public-house,  would  not  have 
been  the  subject  of  an  action  at  common  law,  as  an  individual  injury 
sustained  by  the  plaintiff  in  error,  distinguishing  his  case  from  that 
of  the  rest  of  the  public.  That,  therefore,  he  altogether  fails  to 
bring  himself  within  the  general  principle  upon  which  a  claim  to 
compensation  under  the  Acts  in  question  has  been  determined 
to  depend ;  that,  upon  the  construction  of  the  clauses  on  which 
his  claim  is  rested,  the  6th  section  of  The  Railways  Clauses  Act 
and  the  68th  section  of  The  Lands  Clauses  Act,  are  both  inappli- 
cable, as  his  damage  arose  from  the  temporary  operations  of  the 
company,  and  not  from  their  permanent  works.  And  upon  the 
16th  section  of  The  Railways  Clauses  Act,  which 'does  apply  to  his 
case,  his  damage  was  not  of  such  a  nature  as  to  entitle  him  to 
compensation,  the  interruption  of  persons  who  would  have  re- 
sorted to  his  house  but  for  the  obstruction  of  the  highway  being  a 


SECT.  II. — FOR    CAUSE    AFFECTING    PUBLIC.  585 


No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 


consequential  injury  to  the  plaintiff  in  error  too  remote  to  be 
within  the  provisions  of  that  section. 

I  should  therefore  advise  your  Lordsliips  to  affirm  the  judgment 
of  the  Court  of  Exchequer  Chamber. 

Lord  CRANWORTH.  The  jury  in  this  ease  found  that  the 
appellant  was  entitled  to  recover  from  the  respondents  a  sum  of 
£100  in  compensation  for  damages  sustained  by  tin/  exercise  by 
them  of  the  powers  of  their  Act.  The  only  question  is,  whether 
the  facts  stated  in  the  special  case  as  occasioning  that  damage  are 
such  as  warranted  the  finding  of  the  jury.  And  that  depends  on 
the  true  construction  of  two  clauses  of  The  Railways  Clauses  Act 
(8  &  9  Vict.  c.  20),  the  6th  and  10th,  and  clause  68  of  The  Lands 
Clauses  Act  (8  &  9  Vict.  c.  18)  incorporated  therewith. 

The  6th  section  is  prefaced  by  the  words,  "  and  with  respect  to 
the  construction  of  the  railway  and  the  works  connected  there- 
with, be  it  enacted  as  follows;"  and  this  preface  must  be  taken  as 
relating  to  all  the  clauses  which  follow,  up  to  and  including 
section  29.  After  this  preface,  the  6th  section  provides,  among 
other  things,  that  the  company  shall  make  to  the  owners  and 
occupiers  of,  and  all  other  parties  interested  in,  any  lands  taken 
for  the  purpose  of  the  railway,  or  injuriously  affected  by  the  con- 
struction thereof,  full  compensation  for  the  value  of  the  lands 
taken,  and  for  all  damage  sustained  by  such  owners,  occupiers, 
and  other  parties  by  reason  of  the  exercise  as  regards  such  lands 
of  the  powers  conferred  by  the  company's  Act,  to  be  ascertained 
in  the  manner  there  pointed  out. 

By  the  16th  section  the  defendants  are  empowered,  for  the 
purpose  of  constructing  the  railway,  amongst  other  things,  to 
make  over  any  street  such  temporary  bridges,  and  to  divert  the 
course  of  any  streets  or  ways,  as  they  may  think  proper,  provided 
that  there  shall  be  made  full  satisfaction  to  all  parties  interested 
for  all  damage  by  them  sustained  by  reason  of  the  exercise  of 
such  powers. 

It  is  not  disputed  that  the  defendants  had  properly  and  neces- 
sarily obstructed  by  hoardings  the  free  passage  across  Coppice 
Row,  and  substituted  the  temporary  bridge  to  enable  foot- 
passengers  to  cross  over  it;  and  it  must  lie  taken  to  be  proved 
that  by  reason  of  this  necessary  obstruction,  for  the  twenty 
months  during  which  it  existed,  the  plaintiff  had  been  deprived  of 
the  custom  of  passengers  so  as  to  occasion  to  him  a  loss  of  £100. 


586  ACTION    (RIGHT   OF). 


No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 


Is  this  a  loss  in  respect  of  which  the  statute  gives  him  a  right 
to  compensation  ?  I  think  it  is  not.  I  have  had  considerable 
doubt  in  the  case,  but  that  is  the  conclusion  at  which  I  have 
eventually  arrived. 

It  was  argued  that  the  6th  section  does  not  refer  to  damage 
occasioned  by  obstructions  of  a  temporary  character  necessarily 
made  for  the  purpose  of  constructing  the  railway,  but  only  to 
damage  occasioned  by  the  railway  itself  when  completed.  It  was 
said  that  the  case  of  such  temporary  damage  as  I  have  adverted  to 
was  provided  for  by  the  16th  and  not  by  the  6th  section.  I  do 
not  think  it  material  to  determine  by  which  of  these  sections  the 
present  case  is  governed.  The  only  material  difference  in  the  lan- 
guage by  which  relief  is  given  in  the  one  section  and  in  the  other 
is,  that  in  the  6th  section  relief  is  in  terms  confined  to  the  case  of 
lands  injuriously  affected,  whereas  in  the  16th  relief  is  given  to  all 
parties  interested  for  all  damage  by  them  sustained  by  reason  of 
the  exercise  of  the  powers  thereby  authorised.  I  cannot,  however, 
believe  that  the  damage  intended  to  be  compensated  in  the  latter 
case  is  damage  of  a  nature  different  from  that  contemplated  in  the 
former  case.  I  cannot  believe  that  the  legislature  could  have  in- 
tended to  give  relief  in  respect  of  acts  done  for  a  short  and  limited 
period  while  works  are  in  progress,  and  to  refuse  it  in  respect  of 
the  same  acts  when  they  are  to  have  effect  permanently.  The 
damage  contemplated  in  section  6,  must,  I  think,  be  damnum  cum 
injuria.  It  must  be  damage  occasioned  by  the  land  having  been 
injuriously  affected. 

Both  principle  and  authority  seem  to  me  to  show  that  no  case 
comes  within  the  purview  of  the  statute  unless  where  some 
damage  has  been  occasioned  to  the  land  itself,  in  respect  of  which, 
but  for  the  statute,  the  complaining  party  might  have  maintained 
an  action.  The  injury  must  be  actual  injury  to  the  land  itself,  as 
by  loosening  the  foundation  of  buildings  on  it,  obstructing  its  light 
or  its  drains,  making  it  inaccessible  by  lowering  or  raising  the 
ground  immediately  in  front  of  it,  or  by  some  such  physical  dete- 
rioration. Any  other  construction  of  the  clause  would  open  the 
door  to  claims  of  so  wide  and  indefinite  a  character  as  could  not 
have  been  in  the  contemplation  of  the  legislature. 

The  very  existence  of  a  railway  must  cause  loss  to  many 
persons  in  its  neighbourhood.  Every  inn  or  posting-house  at 
which  post-horses  were  kept,  suffered,  as  is  well  known,  grievous 


SECT.   II.  —  FOR   CAUSE   AFFECTING   PUBLIC.  587 

No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 

loss  by  the  first  establishment  of  a  railroad  in  its  neighbourhood; 

in  fact,  the  business  of  such  a  house  was  often  utterly  destroyed. 
But  it  was  never  contended  that  this  was  an  injury  to  the  house 
under  the  6th  section  for  which  compensation  could  lie  demanded. 
The  house  sustained  no  injury,  though  the  profits  of  the  occupier 
were  diminished  or  destroyed.  Such  a  claim,  if  sustainable,  would 
admit  of  no  limit.  The  railroad  would,  it  is  true,  chiefly  affect  the 
custom  of  posting-houses  near  to  it,  but  it  would  or  might  diminish 
the  quantity  of  posting  to  an  almost  indefinite  extent,  and  I  can 
discover  no  limit  to  the  claims  which,  on  the  doctrine  asserted, 
might  be  successfully  made. 

Precisely  the  same  observations  may  be  made  with  reference  to 
the  present  claim.  The  loss  occasioned  by  the  obstruction  now 
under  consideration  may  be  greater  to  the  plaintiff  than  to  others, 
but  it  affects  more  or  less  all  the  neighbourhood.  He  has  no 
ground  of  complaint  differing,  save  in  degree,  from  that  which 
might  be  made  by  all  the  inhabitants  of  houses  in  the  part  of  the 
town  where  the  works  for  forming  the  railway  were  carried  on. 

It  must  be  admitted  that  there  have  been  decisions  on  this  sub- 
ject not  easily  to  be  reconciled.  The  plaintiff  relied  on  the  case  of 
Wilks  v.  The  Hungcrford  Market  Company,  2  Bing.  X.  C.  281,  and 
on  other  decisions  following  upon  it.  What  was  ultimately  de- 
cided in  that  case  was,  that  where  a  corporate  body  had,  under 
lawful  authority,  obstructed  a  public  thoroughfare,  but  had  con- 
tinued the  obstruction  beyond  the  proper  and  necessary  time,  a 
person  living  in  a  house  bordering  on  the  obstructed  line  might,  in 
respect  of  that  prolonged  obstruction,  sustain  an  action  on  the 
ground  that  in  consequence  of  the  prolonged  obstruction  passen- 
gers had  been  unable  to  conveniently  pass  by  his  door,  and  so  that 
he  had  lost  profit  in  his  business.  I  confess  that  I  have  great 
difficulty  in  agreeing  with  that  decision,  —  a  difficulty  which,  as  I 
collect  from  the  language  of  Sir  William  Erle  in  delivering  the 
judgment  of  the  Exchequer  Chamber  in  the  case  now  before  us, 
was  felt  by  him  and  the  Judges  who  concurred  with  him.  But  it 
is  enough  to  say  that  the  relief  to  which  the  plaintiff'  was  there 
held  to  be  entitled  was  not  founded  on  any  suggestion  of  injury  to 
the  land  or  to  the  house,  —  the  sole  ground  on  which  there  can  be 
any  title  to  relief  in  this  case,  —  but  on  an  injury  to  the  occupier, 
which  the  Court  must  have  held,  in  the  language  of  Chief  Justice 


588  ACTION  (right  of). 


No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 


TlNDAL,  to  have  been  the  direct,  necessary,  natural',  and  immediate 
consequence  of  the  obstruction. 

A  case  bearing  a  much  closer  resemblance  to  that  now  before 
the  House  is  that  of  Rex  v.  The  London  Bocks  Company,  5  Ad.  &  E. 
163.  There  the  Act  under  which  compensation  was  claimed 
authorised  in  the  usual  way  the  taking  of  lands  and  the  making  of 
works  necessary  for  the  undertaking;  and  the  89th  section  of  the 
Act  provided  that  if  any  person  having  an  interest  in  any  houses, 
lands,  or  hereditaments  not  less  than  that  of  a  tenancy  from  year 
to  year,  should  be  injured  in  his  said  estate  or  interest  by  the 
making  of  any  cut,  sluice,  bridge,  road,  or  other  work,  every  such 
person  should  be  entitled  to  compensation  for  such  injury,  to  be 
ascertained  by  a  jury.  The  persons  claiming  compensation  there 
were  the  owners  and  occupiers  of  a  public-house,  and  the  defen- 
dants, in  the  exercise  of  their  powers,  made  several  cuts  and  other 
works  materially  obstructing  the  access  to  the  public-house,  but 
not  otherwise  injuring  it.  The  question  whether  a  peremptory 
mandamus  should  issue,  calling  on  the  defendants  to  issue  a  pre- 
cept to  the  sheriff  to  summon  a  jury  to  assess  the  damage  to  the 
persons  claiming  compensation,  depended  on  the  question  whether 
the  damage  complained  of  was  an  injury  contemplated  by  the 
89th  section  of  the  Act.  The  case  was  elaborately  argued,  and  the 
Court,  after  time  taken  for  consideration,  held  that  there  was  no 
title  to  compensation ;  that  the  Act  contemplated  only  direct 
injury  occasioned  by  some  positive  act  of  the  defendants,  —  as,  for 
instance,  if  they  had  weakened  the  foundation,  darkened  the 
lights,  or  obstructed  the  drains  of  the  house. 

I  fully  subscribe  to  that  decision  ;  and  though,  according  to  the 
language  of  the  statute  then  under  discussion,  the  compensation 
was  to  be  given  for  injury  to  be  occasioned  to  any  person  in  his 
estate  or  interest  in  any  lands  or  houses,  and  not,  as  in  the  present 
case,  under  The  Lands  Clauses  Act,  in  consequence  of  his  interest 
in  any  land  being  injuriously  affected,  yet  the  meaning  of  the 
legislature  in  both  cases  seems  to  me  to  be  the  same. 

This  was  certainly  the  view  of  your  Lordships'  House  in  the 
rase  of  Ogilvy  v.  The  Caledonian  Railway,  though  the  facts  their 
were  not  precisely  the  same  as  those  which  now  call  for  decision. 

This  being  my  opinion,  I  think  that  your  Lordships  ought  to 
give  judgment  for  the  defendants  in  error. 

L»rd  Westbury.      My  Lords,  this  case  was  heard  by  six  judges 


SHUT.   II.  —  FOR   CAUSE    AFFECTING    PUBLIC.  580 

No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 


iii  the  Court  of  Exchequer  Chamber,  on  a  writ  of  error  from  the 
Court  of  Queen's  Bench.  The  six  judges  differed  in  opinion,  four 
being  for  reversing  and  two  for  affirming  the  judgment  oi  the 
Court  below.  The  four  judges  in  the  Queen's  Bench  were  unani- 
mous. Deducting,  therefore,  the  two  from  the  six  judges  in  the 
Exchequer  Chamber,  the  unanimous  judgment  of  the  four  judges  in 
the  Queen's  Bench  has  been  annulled  by  two  judges  in  the  Exche- 
quer Chamber.  By  the  same  majority  the  case  of  Senior  v.  Lhe 
Metropolitan  Railway  Company,  2  H.  &  C.  258,  decided  by  the  Court 
of  Exchequer  in  1863,  and  the  case  of  Cameron  v.  The  Clin  nag 
Cross  Railway  Company,  16  C.  B.  (N.  S.)  430,  decided  by  the  Court 
of  Common  Pleas  in  1864  (which  are  the  authorities  for  the  judg- 
ment in  the  Court  of  Queen's  Bench  in  the  present  case),  have  also 
been  overruled.  There  are,  therefore,  the  judicial  opinions  of  ten 
or  twelve  judges  opposed  to  the  present  judgment,  which  is  the 
judicial  opinion  of  four. 

It  is  a  matter  of  regret  that  our  judicial  institutions  should 
admit  of  these  anomalies.  It  is  also  painful  to  observe  the  number 
of  conflicting  decisions  on  the  law  of  compensation  by  railway  com- 
panies, which  is  the  subject  of  the  present  appeal.  It  is  impossible 
to  reconcile  these  decisions  by  any  sound  distinctions,  and  the 
result  is,  that  to  a  great  extent  they  neutralise  each  other.  More- 
over, it  is  distressing  to  be  told  (as  we  are  in  the  judgment  before 
us)  that  the  Court  of  Exchequer,  in  Senior  v.  Tlie  Metropolita n 
Railway  Company,  and  the  Court  of  Common  Pleas  in  Cameron  v. 
The  Charimj  Cross  Railvjay  Company,  founded  their  judgments  on 
the  supposed  effect  of  the  judgment  given  by  the  Court  of  Exche- 
quer Chamber  so  recently  as  in  the  year  1863,  in  the  case  of  Cham- 
berlain v.  The  London  and  Crystal  Palace  Railway  Company,  2  B. 
&  8.  605-617,  but  that  both  the  Court  of  Common  Pleas  and  the 
Court  of  Exchequer  did  not  understand  the  judgment  on  which 
they  so  relied.  It  is  a  striking  example  of  the  uncertainty  of  the 
law  which  rests  on  judicial  decisions. 

I  turn  from  the  cases,  therefore,  to  the  Acts  of  Parliament ;  for 
the  question  depends  on  the  true  meaning  of  two  or  three  sections, 
which  do  not  appear  to  me  to  be  hard  to  interpret.  In  the  begin- 
ning of  railway  legislation,  Parliament,  whilst  conferring  on  rail- 
way companies  extraordinary  powers  over  private  property,  felt 
the  justice  of  imposing  on  the  companies  the  obligation  of  making 
the  fullest  compensation  for  all  property  taken,  and  for  all  damage 


590  ACTION  (right  of). 


No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 


sustained  by  individuals,  through  the  exercise  of  such  powers. 
Care  was  used  to  provide  that  whenever  damage  was  done  to  the 
property  of  an  individual  in  the  exercise  of  the  statutory  powers, 
compensation  should  be  given,  although  the  powers  might  have 
been  most  properly  and  carefully  exercised. 

It  is  material  to  observe  that  compensation  under  these  statutes 
is  given  for  damage  resulting  from  lawful  acts  done  by  the  com- 
panies in  the  exercise  of  their  powers.  Such  acts  are  not  injuries 
or  grounds  of  action  at  law,  although  they  may  cause  damage,  and 
consequently  give  a  right  to  compensation  under  the  statute. 
When  an  act  is  done  by  a  company  in  excess  of  its  powers,  or  in  a 
wanton  and  careless  use  of  them,  there  is  an  injury  for  which  the 
sufferer  retains  a  remedy  by  an  action  at  common  law,  or  by  suit 
in  equity  for  an  injunction  ;  but  things  done  by  a  company  in  the 
due  execution  of  its  powers  are  lawful,  being  duly  authorised,  and 
no  action  lies  on  account  of  them.  When,  therefore,  the  General 
Eailway  Acts  use  the  term  "  injuriously  affected,"  the  word  "  injuri- 
ously "  does  not  mean  "  wrongfully  "  or  "  unlawfully  ;  "  nor  does  it 
imply  that  compensation  is  limited  to  cases  where  the  act  done  is 
such  as,  but  for  the  powers  given,  would  be  a  tort  at  common  law. 
The  words  mean  "  damnously  affected  "  only ;  and  the  consequen- 
tial right  to  compensation  is  the  creature  of  the  statutes,  to  be 
ascertained  and  measured  by  the  positive  language  of  the  enact- 
ments, and  not  by  analogy  to  actions  of  tort  or  trespass.  There  is 
nothing  in  the  statutes  to  warrant  the  position  that  there  shall  be 
no  compensation  where  at  common  law  there  would  have  been  no 
right  of  action. 

In  the  16th  section  of  The  Railways  Clauses  Act  two  conditions 
are  imposed  upon  companies  respecting  the  exercise  of  their  statu- 
tory powers.  One  is,  that  they  shall  do  as  little  damage  as  can 
be  ;  and  the  other  that  they  shall  make  full  satisfaction  to  all 
parties  interested  for  all  damage  by  them  sustained  by  reason  of 
the  exercise  of  such  powers.  In  an  early  stage  of  the  judicial 
exposition  of  statutes  of  this  description,  Lord  Eldon  decided  that 
they  must  be  treated  as  contracts  between  the  companies  and  the 
legislature.  And  this  is,  no  doubt,  the  true  principle  by  which 
they  should  be  construed  and  applied.  Liability  to  make  compen- 
sation, therefore,  is  the  contract  of  the  companies  with  the  legisla- 
ture ;  and  the  right  of  the  parties  interested  —  that  is,  the  parties 
sustaining  loss  —  results  from  that  contract  and  the  enactments 


SECT.  II.  —  FOE    CAUSE    AFFECTING    PUBLIC.  591 

No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 

which  give  effect  to  it.  It'  this  view  he  correct,  it  follows  that  it  is 
a  mistake  to  lay  down,  as  I  find  done  in  several  eases,  and  in  effect 
in  the  judgment  of  the  four  judges  in  this  ease,  that  the  injury 
intended  by  the  words  "injuriously  affected"  must  he  one  in 
respect  of  which,  if  there  had  been  no  statute  enabling  thecompany 
to  do  the  act,  an  action  would  have  lain  for  the  injury  at  common 
law.  Eight  to  compensation  is  a  title  introduced  by  and  depen- 
dent on  the  statutes;  and  it  is  only  necessary  to  prove  special 
damage  to  the  occupant  of  the  property,  occasioned  by  the  con- 
struction of  the  railway  or  its  incidental  works,  and  that  the  com- 
plainant is  a  party  interested  within  the  meaning  of  that  phrase 
in  the  statute. 

I  use  the  words  "special  damage,"  or  individual  particular  loss, 
because  I  entirely  concur  with  the  doctrine  that  compensation 
cannot  he  claimed  by  an  individual  for  damage  which  is  sustained 
in  common  by  all  the  subjects  of  the  realm.  Thus,  if  a  public 
highway  be  diverted,  or  crossed  on  a  level,  by  a  railway,  the 
inconvenience  of  having  to  wait  whilst  trains  pass  is  common 
to  all  the  public ;  and  the  benefit  which  it  is  considered  results 
to  the  public  from  the  railway  is  the  only  compensation.  Persons 
dwelling  in  the  neighbourhood  may  sustain  this  inconvenience 
more  frequently  than  the  rest  of  the  public ;  but  if  the  inconve- 
nience is  to  be  regarded  as  compensated  by  the  public  convenience, 
it  cannot  be  converted  into  a  ground  for  compensation  by  reason 
of  certain  persons  having  to  sustain  the  inconvenience  more 
frequently  than  the  rest  of  their  fellow-subjects. 

I  agree  also  with  the  distinction  that  has  been  taken  between 
damage  resulting  from  the  railway  when  complete,  or  from  the 
act  of  making  it,  and  damage  occasioned  by'  the  proper  (not 
negligent)  user  of  the  railway  when  made.  No  claim  can  be 
made  for  loss  resulting  from  the  due  user  of  a  railway.  Many 
persons,  such  as  the  proprietors  of  stage-coaches,  stage-waggons, 
and  the  owners  of  posting-inns  may  be  ruined  by  the  user  of  the 
railway  by  the  public,  but  they  have  no  claim  to  compensation. 
Compensation  is  given  by  the  statute  only  to  individuals  who,  in 
respect  of  the  ownership  or  occupancy  of  lands  or  tenements, 
sustain  loss  in  or  through  the  construction  of  the  railway,  or  the 
execution  of  the  incidental  works. 

This  will  appear  on  a  short  examination  of  the  several  enact- 
ments.    By  the   68th   section   of   The   Lands   Clauses   Act   it   is 


592  ACTION    (UIGHT    OF). 


No.  7.  —  Ricket  v.  Metropolitan  Railway  Co. 


enacted,  that  "  if  any  party  shall  be  entitled  to  any  compensation 
in  respect  of  any  lands,  or  of  any  interest  therein,  which  shall 
have  been  taken  for,  or  injuriously  affected  by,  the  execution  of  the 
works,"  &c.,  "such  party  may  have  the  same  settled  either  by 
arbitration  or  by  the  verdict  of  a  jury,  as  he  shall  think  tit.'' 
By  the  interpretation  clause  the  word  "  lands "  includes  mes- 
suages, tenements,  and  hereditaments  ;  and  this  enactment,  there- 
fore, treats  the  owner  of  any  interest  in  a  messuage,  which  is 
damaged  or  injuriously  affected  by  the  execution  of  the  works  of 
a  railway,  as  entitled  to  compensation. 

It  seems  difficult  to  deny  that  the  occupier  of  a  public-house, 
the  value  of  which  depends  on  its  custom,  has  his  interest  in  that 
house  materially  damaged  by  loss  of  custom.  It  may  always 
have  been  used  as  a  public-house,  and  as  such  has  been  let  to 
the  occupier,  who  takes  it,  and  pays  a  high  rent  for  it  as  a  public- 
house.  When  he  took  it,  its  value  was  ascertained,  and  the  rent 
fixed  by  reference  to  the  custom  it  had  ;  and  it  seems  in  the 
highest  degree  unreasonable  to  strip  the  house  of  its  character, 
and  of  the  use  and  purpose  for  which  it  has  been  constructed, 
fitted,  and  employed,  and,  having  so  done,  to  say  that  the  interest 
of  the  occupier  has  sustained  no  damage  because  the  building  or 
structure  has  not  been  deteriorated.  A  man  gives  a  rent  of  £100 
per  annum  for  a  public-house  with  good  custom,  long  established 
in  some  much-frequented  thoroughfare,  which  house,  if  not  used 
as  a  public-house,  would  not  be  worth  £50  per  annum.  Suppose, 
then,  that  the  thoroughfare  should  be  wholly  or  partially  ob- 
structed, and  the  custom  of  the  house  thereby  diminished  by 
one-half,  is  it  consistent  with  common  sense  to  say  that  the 
interest  of  the  tenant  in  the  house  is  not  materially  prejudiced  ? 
It  is  a  fallacy,  almost  a  mockery,  to  answer,  "  the  custom  is  one 
thing,  and  the  house  another,  and  the  injury  is  to  the  custom,  not 
to  the  house."  You  cannot  sever  the  custom  from  the  house 
itself,  or  from  the  interest  of  the  occupier;  for  the  custom  is  the 
tiling  appertaining  to  the  house  which  gives  it  its  special  character, 
and  constitutes  its  value  to  the  occupier,  and  for  which  he  pays 
in  the  high  rent  he  has  agreed  to  give.  If  you  diminish  the 
custom  of  a  public-house  you  diminish  its  value  either  to  let  or 
sell,  and  therefore  you  deteriorate  the  public-house  and  the  inter- 
est of  the  tenant  therein. 

The  true   principle  and   the   only  rule  is,  that   in   the  inquiry 


SECT.*  II.  —  FOR   CAUSE    EFFECTING    PUBLIC.  593 

No.  7.  —  Rickct  v.  Metropolitan  Railway  Co. 

whether  the  interest  of  the  occupier  of  a  messuage  or  building  is 
damaged,  —  that  is,  injuriously  affected,  —  you  should  estimate  the 
value  of  the  messuage  or  building  to  the  occupier  with  refer- 
ence to  the  use  that  he  makes  of  it,  and  the  beneficial  purpose 
for  which  he  has  hired  it  and  fitted  it  up,  and  for  which  he  has 
paid  and  pays  to  the  landlord  a  larger  annual  sum  than  the  build- 
ing, perse,  would  command  ;  and  if  you  find  this  use  and  enjoyment 
impaired  by  the  works  of  the  railway,  you  are  bound  to  decide 
that  the  interest  of  the  occupier  is  pro  tanto  damaged,  —  that  is, 
injuriously  affected. 

It  is  clear  that  if  the  railway  company,  in  the  exercise  of  its 
statutory  power,  took  the  public-house  entirely,  it  would  have  to 
pay  for  it  according  to  its  value  as  a  public-house,  and  the  interest 
of  the  occupier  therein  would  be  estimated  with  reference  to  the 
value  of  the  custom  of  the  public-house.  But  the  same  considera- 
tion by  which  the  value  of  the  entirety  is  estimated  must  apply 
and  be  taken  into  account  when  the  question  is,  whether  the  value 
of  the  public-house  during  a  certain  period  of  time  has  or  has  not 
been  deteriorated. 

The  trade  or  custom  is  a  thing  appertaining  to  the  premises,  and 
not  to  the  person  of  the  occupier ;  but  all  things  appertaining  to 
the  premises  are  part  of  the  premises,  and  included  in  the  interest 
of  the  occupier,  which  word  "interest"  is  a  large  and  comprehen- 
sive word.  I  adopt  the  observation  of  the  Court  of  Exchequer, 
"  Loss  of  profits  by  loss  of  business  is  a  loss  to  the  goodwill  of  the 
premises,  and  the  goodwill  is  part  of  the  value  of  the  property." 

The  language  of  the  6th  section  of  The  Railways  Clauses  Act 
is  still  more  general  and  comprehensive  than  the  words  of  the 
6Sth  section  of  The  Lands  Clauses  Consolidation  Act,  to  which 
these  observations  have  been  hitherto  confined,  for  by  this  6th 
section  compensation  is  to  be  given  to  all  owners  or  occupiers  of, 
and  all  other  parties  interested  in,  any  lands  taken  or  used  for 
the  purposes  of  the  railway,  or  injuriously  affected  by  the  con- 
struction thereof,  for  all  damage  sustained  by  such  owners,  occu- 
piers, and  other  parties,  by  reason  of  the  exercise,  as  regards  such 
lands,  of  the  powers  by  The  Railways  Clauses  Act,  or  the  special 
Act  or  any  Act  incorporated  therewith,  vested  in  the  company. 

The  16th  section  is  perhaps  the  most  important,  because  it  is 
under  this  section  (being  incorporated  into  their  special  Act)  that 
the  defendants  have  executed  the  works  by  reason  of  which  the 
vol.  i.— 38 


>94  ACTION  (right  of). 


No.  7.  —  Eicket  v.  Metropolitan  Railway  Co. 


plaintiff  has,  as  regards  his  interest  in  the  public-house  he  occu- 
pies, suffered  the  damage  complained  of.  By  the  16th  section, 
after  conferring  on  the  defendants  various  powers  to  execute  works 
incidental  to  the  construction  of  the  railway,  it  is  provided  that  they 
shall  make  full  satisfaction  to  all  parties  interested  for  all  damage  by 
them  sustained  by  reason  of  the  exercise  of  such  powers.  There 
is  m  this  section  a  material  alteration  in  the  language  used.  The 
persons  entitled  are  no  longer  described  as  the  owners  or  occupiers 
of,  or  parties  interested  in,  lands  taken  or  injuriously  affected,  but 
as  "  parties  interested ; "  and  the  word  "  compensation,"  which  is, 
perhaps,  more  limited  in  meaning,  is  changed  into  the  wide  term, 
"  satisfaction." 

I  cannot  at  all  agree  with  the  remark  that  the  reference  made 
by  this  section  to  the  manner  of  ascertaining  the  satisfaction 
de-cribed  in  other  Acts  limits  the  meaning  of  the  words  "  parties 
in  erested ; "  for  the  reference  is  merely  for  the  purpose  of  incor- 
porating into  the  16th  section  the  mode  of  procedure  directed  in 
the  Acts  referred  to,  —  viz.,  by  arbitration  or  inquisition  by  a  jury; 
and  has  not  the  effect  of  controlling  or  altering  the  description  of 
the  subject-matter  or  the  parties,  as  contained  in  the  section 
making  the  reference.  The  object  of  the  reference  is  quite  plain, 
—  namely,  to  embody  the  directions  elsewhere  given  as  to  the  mode 
of  proceeding  to  ascertain  the  compensation  to  be  paid.  In  my 
opinion  the  term  "parties  interested"  in  this  16th  section  must 
mean  parties  sustaining,  in  respect  of  property,  a  special  and 
individual  loss  by  reason  or  in  consequence  of  the  accommodation 
works  which  the  company  is  by  this  section  empowered  to 
construct,  and  therefore  having  an  interest  or  right  to  require 
satisfaction  for  damage  of  which  the  works  are  the  immediate  or 
proximate  cause. 

It  is  singular  that  this  16th  section  of  The  Railways  Clauses  Act, 
and  the  alteration  of  the  language  employed  therein,  are  not 
adverted  to  in  the  judgment  of  the  Court  of  Exchequer  Chamber. 
Perhaps  it  was  tacitly  assumed  (for  it  is  not  so  expressed)  that 
the  phrase  ''■  parties  interested  "  was  equivalent  to  parties  "inter- 
ested in  lands  injuriously  affected."  This,  however,  would  be  a 
strong  and  perhaps  unwarranted  assumption;  for  the  general  rule 
is,  that  a  deliberate  change  of  expression  must  be  taken  primd 
fat  ie  to  import  a  change  of  intention.  I  do  not,  however,  mean 
to  rest  my  opinion  in  this  case  on  the  construction  I  have  put  on 


SECT.  II.  —  FOR   CAUSE    AFFECTING    PUBLIC.  595 

No.  7.  —  Ricket  v.  Metropolitan  Railway  Co.       Notes. 

this  16th   section.     On   the  contrary,   I   am  content  to  take   tin; 
words  " parties  interested "  as  equivalent  to  the  winds  in  the  6th 
section  of  The  Railways  Clause's   Act,  and  in  the  68th  section      E 
The  Lands  Consolidation  Act,  —  viz.,  "owners  or  occupiers  oi 
parties  having  an  interest  in  lands  injuriously  affected.'' 

The  error  in  the  decision  (for  so  I  must  respectfully  deem   it 
be)  which  has  led   to   the   judgment   now   appealed   from,   and 
others   upon    which    that   judgment    is    founded,    appears    to 
to  have   arisen   entirely    from    the    meaning    attributed    to    I .. 
words  "  injuriously  affected,"  which  have  been  interpreted  to  i, 
"  affected  in  such  a  manner  as  but  for  the  statutes  would  consl  i 
an  injury  at  law,  and  would  support  an  action  for  damages.'"      I 
there  is  not,  in  my  judgment,  any  warrant   for  so  interpreting 
paraphrasing  the  words,  which,  in  my  opinion,  are  plainly   used 
in  their  ordinary  and  popular  sense;  for  it  is  evident  that  lands 
affected  in  the  proper  exercise  of  the  statutory  powers  cannot,  in 
a  legal  sense,  be  said  to  be  "  injuriously  affected." 

For  these  reasons,  which  I  have  imperfectly  stated,  and  which 
might  be  much  more  cogently  enforced,  I  have  the  strongest 
opinion  that  the  plaintiff  in  the  present  case  is  the  occupier  of  a 
messuage  which  has  (according  to  the  true  meaning  of  the  statute) 
been  injuriously  affected  by  the  works  of  this  railway  company  ; 
and  I  think,  therefore,  that  judgment  ought  to  be  given  for  the 
plaintiff. 

Judgment  of  the  Exchequer  Chamber  affirmed,  with  costs. 
Lords  Journals,  16th  May,  1867. 


ENGLISH   NOTES 

In  the  case  of  Iceson  v.  Moore  (K.  B.  lf>99),  Holt  Rep.  10,  11,  "it 
was  agreed  by  the  whole  Court  (of  the  Kino-'s  Bench)  that  where  an 
action  arises  from  a  public  nuisance,  there  must  be  a  special  damage; 
for  he  that  did  the  nuisance  is  punishable  at  the  suit  of  the  public,  by 
indictment  or  information;  and  to  allow  all  private  persons  their  ac- 
tions without  special  damage,  would  create  an  infinite  multiplicating 
of  suits."  The  Court,  however,  were  divided  in  opinion  as  to  whether 
such  special  damage  existed  in  'he  case  before  the  Court,  which  was  an 
action  for  the  stopping  up  of  a  highway  convenient  to  the  plaintiff's 
colliery,  whereby  he  lost  the  profits,  &c.  Ultimately,  the  case  having 
been  argued  before  all  the  Justices  <>f  the  Common  Pleas  and  the  Barons 
of  the  Exchequer,  they  were  all   of  opinion  for  the  plaintiff  that  the 


596  ACTION  (right  of). 


No.  7.  —  Ricket  v.  Metropolitan  Railway  Co.  —  Notes. 


action  well  lay  (s.  c.  Lord  Raymond,  pp.  486,  495).  The  rule  of  the 
King's  Bench,  in  Iveson  v.  Moore,  was  applied  in  the  case  of  Winter- 
bottom  v.  Lord  Derby  (1867).  L.  R.,  2  Ex.  316;  36  L.  J.  Exch.  194, 
where  the  plaintiff,  who  was  obstructed  in  using  a  public  right  of  way, 
was  held  not  entitled  to  maintain  an  action;  and,  in  order  to  claim 
special  damage,  it  was  not  enough  to  say  that  he  had  incurred  expense 
in  repeatedly  removing  obstructions. 

The  case  of  Or/ilvy  v.  Caledonian  Railway  Co.  (1867),  2  Macq.  229, 
referred  to  by  Lord  Chelmsford  in  the  principal  case  (p.  576,  ante), 
was  a  decision  of  the  House  of  Lords  on  an  appeal  from  Scotland.  The 
gist  of  the  case  is  sufficiently  stated  by  Lord  Chelmsford.  The  in- 
jury complained  of  was  the  inconvenience  of  a  level  crossing  near  the 
lodge  of  the  plaintiff's  house,  and  across  the  public  highway  which 
formed  the  chief  access  to  it.  The  access  to  the  plaintiff's  house  was  not 
cut  off,  nor  was  it  in  ordinary  circumstances  made  more  difficult;  but 
the  plaintiff  and  his  visitors  had.  like  the  rest  of  the  public,  to  submit 
to  the  inconvenience  of  waiting  while  the  gates  were  shut  for  the  pas- 
sage of  trains. 

In  two  cases,  both  of  which  went  up  to  the  House  of  Lords,  and 
which  are  at  first  sight  very  like  the  principal  case,  and  still  more 
perhaps  like  the  case  of  Ogilry  v.  The  Caledonian  Raihray  Co.  the 
owner  or  occupier  of  the  property  affected  recovered  compensation. 
These  are  Metropolitan  Board  of  Works  v.  McCarthy  (1874),  L.  R., 
7  H.  L.  243  ;  43  L.  J.  C.  P.  385  ;  and  Caledonian  Rail  tray  Co.  de- 
fendants and  appellants)  v.  Walker's  Trustees  (1882).  7  App.  Cas. 
259.  In  McCarthy's  Case  the  plaintiff  was  lessee  or  occupier  of  a 
house  in  close  proximity  to  a  draw-dnck  opening  into  the  Thames. 
He  had  no  right  to  the  use  of  the  draw-dock  except  as  one  of  the 
public,  but  he  was  in  constant  use  of  it  for  the  purposes  of  the  busi- 
ness carried  on  on  his  premises.  The  dock  was  entirely  destroyed 
by  the  works  of  the  Thames  Embankment.  In  Caledonia)/.  Ry.  Co.  v. 
Walker's  Trustees  (1882),  7  App.  Cas.  259,  the  company,  by  the  exe- 
cution of  their  works,  cut  off,  permanently,  the  access  to  the  plaintiff's 
premises  by  one  of  two  previously  existing  highways.  The  broad  dis- 
tinction in  Ricket's  Case  was  that  the  access,  although  made  less  con- 
venient temporarily  and  during  the  construction  of  the  works,  was  even 
during  that  period  preserved  substantially  in  the  original  lines  of  com- 
munication. The  distinction  between  this  case  and  the  case  of  Ogilry 
v.  The  Caledonian  Ry.  Co.,  so  far  as  relates  to  the  grounds  on  which 
the  decision  in  that  case  was  rested,  was  more  difficult;  but  Lord  Sel- 
borne  ingeniously  points  out  that  the  decision  itself  can  be  supported 
on  the  grounds  on  which  the  House  afterwards  decided  the  case  of 
Hammersmith  Ry.  Co.  v.  Brand  (p.  623,  post).     For  the  inconvenience 


SECT.IL  —  FOR   CAUSE    EFFECTING    PUBLIC.  597 

No.  7.  -  -  Ricket  v.  Metropolitan  Railway  Co.    -  Notes. 

complained  of  in  Ogilvy's  Case  was  not  caused  by  the  execution  of  the 
works,  but  by  the  shutting  of  the  gates  on  the  approach  of  a  train;  and 
was  therefore  occasioned  by  the  lawful  user  of  the  railway,  for  which  no 
compensation  was  given  by  the  Act  of  Parliament. 

In  his  judgment  in  this  case  of  Caledonian  Ry.  Co.  v.  Walkers  Trus- 
tees, Lord  Selborne  (7  App.  Cas.  276)  lays  down  the  principles  t  >  be 
deduced  from  Caledonian  Ry.  Co.  v.Ogilvy;  Ricket  v.  Metropolitan  Ry. 
Co.;  Metropolitan  Board  of  Works  v.  McCarthy;  and  Hammersmith 
Ry.  Co.  x.  Brand  (see  p.  GL'o,  post),  as  follows :  "  1.  When  a  right  of 
action,  which  would  have  existed  if  the  work  in  respect  of  which  com- 
pensation is  claimed  had  not  been  authorised  by  Parliament,  would 
have  been  merely  personal,  without  reference  to  land  or  its  incidents, 
compensation  is  not  due  under  the  Acts.  2.  When  damage  arises,  not 
out  of  the  execution,  but  only  out  of  the  subsequent  use  of  the  work, 
then  also  there  is  no  case  for  compensation.  3.  Loss  of  trade  or  cus- 
tom, by  reason  of  a  work  nut  otherwise  directly  affecting  the  house 
or  land  in  or  upon  which  a  trade  has  been  carried  on,  or  any  right 
properly  incident  thereto,  is  not  by  itself  a  proper  subject  for  compen- 
sation. 4.  The  obstruction  by  the  execution  of  the  work  of  a  man's 
direct  access  to  his  house  or  land,  whether  such  access  be  by  a  public 
road  or  by  a  private  way,  is  a  proper  subject  for  compensation.''  Lord 
Selborne  also  (7  App.  ('as.  283)  points  out  that  Ricket's  Case  is  not 
satisfactorily  explained  by  the  distinction  between  temporary  and  per- 
manent damage  insisted  on  by  Lord  Chelmsford  (p.  584,  ante,  L.  R., 
2  H.  L.  194)  as  the  criterion  of  compensation  in  regard  to  lands  which 
are  not  taken  by  the  company.  And  Lord  BLACKBURN  (7  App.  Cas. 
296)  shows  that  Lord  Ckaxworth's  dictum  in  Rickefs  Case  (p.  588, 
ante,  L.  R.,  2  H.  L.,  at  p.  198)  —  t<>  the  effect  that  the  injury,  to  give 
ground  for  compensation  under  the  Acts,  must  be  actual  injury  to  the 
land  itself,  as  by  loosening  the  foundations  of  buildings  on  it,  obstruct- 
ing their  light,  raising  or  lowering  the  ground  immediately  in  front,  or 
by  some  such  physical  deterioration  —cannot  be  supported;  and  that  the 
judgment  arrived  at  by  the  House  in  this  case  of  The  Caledonian  Ry, 
Co.  v.  Walker's  Trustees  is  inconsistent  with  that  dictum. 

The  criticism  by  Lord  SELBORNEof  Lord  Chelmsford's  language  just 
referred  to  is  repeated  and  enforced  by  the  Lord  .lust  ices  Lord  Esher, 
j\I.  R.,  and  Cotton  and  Bowen,  L.  JJ.,  in  Ford  v.  Metropolitan  and 
District  Ry.  Companies  (1880),  17  Q.  B.  D.  12,  20,  23,  28.  The  ques- 
tion arose  upon  the  award  of  an  arbitrator  as  to  damage  to  the  plaintiff 
by  the  execution  of  the  works  of  the  companies.  There  was  permanent 
damage  by  the  destruction  of  certain  buildings,  the  use  of  which  the 
plaintiff  bad  enjoyed  as  an  easement  to  his  business  premises;   but    it 


598  ACTION  (right  of). 


No.  7.  —  Ricket  v.  Metropolitan  Railway  Co.  —  Notes. 


was  (inter  alia)  objected  that  the  award  was  bad,  because  the  arbitra- 
tor had  taken  into  account  damage  done  while  the  alterations  were* 
going  on,  such  as  damage  to  samples  by  dust,  cutting  off  of  water  and 
gas,  and  generally  making  a  mess  of  the  premises  upon  which  the- 
plaintiff  had  enjoyed  the  easement.  The  Court  of  Appeal,  notwith- 
standing, sustained  the  award. 

In  the  case  of  London  Association  of  Shipowners  v.  London,  &c. 
Docks  Committee  (C.  A.  1892),  3  Ch.  242,  270,  the  substantial  question 
was  whether  certain  by-laws  as  to  the  appropriation  of  berths  in  the- 
docks,  purporting  to  be  issued  under  the  special  Act  of  the  defendants 
and  the  Harbour,  &c.  Act,  1847,  were  ultra  vires.  An  incorporated 
Association  of  Shipowners,  &c,  were  plaintiffs  in  the  action;  but  it 
was  held  that  such  a  corporation  had  clearly  no  locus  standi,  although 
the  individual  members  were  shipowners.  The  Peninsular  and  Ori- 
ental Company  had  been  joined  as  plaintiffs.  It  appeared  that  all  the- 
business  of  the  P.  and  O.  Company  was  carried  on  under  special  agree- 
ments not  affected  by  the  by-laws;  and  that  the}',  having  failed  to  prove 
special  damage,  had  no  locus  standi  in  the  action  so  as  to  obtain  an  in- 
junction; but  the  Court  exercised  their  jurisdiction  under  R.  S.  C.  Ord. 
XXV.  R.  5,  to  make  a  declaratory  judgment  to  the  effect  that  the  by- 
laws were  not  binding  on  the  P.  and  ().  Company,  and  with  that  de- 
claration dismissed  the  action  without  costs. 

AMERICAN   NOTES. 

There  can  be  no  doubt  that  the  doctrine  of  subdivision  (a)  of  the  rule  is 
universally  accepted  in  this  country.  It  will  be  sufficient  to  refer  to  the  fol- 
lowing cases  :  Burrows  v.  Pixley,  1  Root  (Connecticut,  A.  D.  1792),  362  ;  1  Am. 
Dec.  56,  and  note,  57  ;  Abbott  v.  Mills,  3  Vermont,  521  ;  23  Am.  Dec.  222,  and 
note,  230;  Stetson  v.  Faxon,  19  Pickering  (Mass.),  147;  31  Aid.  Dec.  123,  and 
note,  132;  Crommelin  v.  Coxe,  30  Alabama,  318;  68  Am.  Dec.  120,  and  note,. 
126;  So.  Carolina  R.  Co.  v.  Moore,  28  Georgia,  398;  73  Am.  Dec.  77S,  and 
note,  785;  Norcross  v.  Thorns,  51  Maine.  503;  81  Am.  Dec.  588,  and  note,  591  ; 
Francis  v.  Sclioellkopf,  53  New  York.  152;  1  Beach  Eq.  Jur.  §742:  McDonald 
v.  City  of  Newark,  (X.  J.  L  ),  26  Atl.  Rep.  82;  Higbee  v.  Camden  #■  Ambotj 
R.  Co.,  19  New  Jersey  Equity,  270;  3  Pomeroy  Eq.  Jur.  §  1319;  Milhau  v. 
Sharp,  27  New  York,  611  ;  81  Am.  Dec.  314  ;  Walker  v.  Shepardson,  2  Wiscon- 
sin. 384;  (.0  Am.  Dec.  423;  Low  v.  Knowlton,  26  Me.  128;  45  Am.  Dec.  100; 
Brown  v.  Watson,  47  Maine,  161  ;  71  Am.  Dec.  482;  School  District  v.  Neil,  36 
Kansas,  617;  59  Am.  Rep.  575;  Steamboat  Co.  v.  Railroad  Co.,  30  So.  Caro- 
lina, 539;  14  Am.  St.  Rep.  923;  Canton  Cotton  Warehouse  v.  Potts,  69  Missis- 
sippi, 31  ;  Price  v.  Grantz,  118  Penn.  St.  402;  4  Am.  St.  Rep.  601  :  Zettel  v. 
City  of  West  Bend,79  Wis.  316;  24  Am.  St.  Rep.  715;  Fossion  v.  Landry,  123 
Indiana,  136;  Plait  v.  Chicago,  ^c.  R.  Co.,  74  Iowa,  127;  Fogg  v.  Nerada,  §'a 


SECT.  II.  —  FOR   CAUSE   AFFECTING    PUBLIC.  599 

No.  7.  —  Eicket  v.  Metropolitan  Railway  Co.  —  Notes. 

Ry.  Co.,  20  Nevada,  429;  Glaessner  v.  Ankeuser,  Sfc.  Ass'n.,  100  Missouri,  508 ; 
Sun  Jose  Co.,  v.  Brooks,  74  California,  463 ;  Reardon  v.  ('////  «//'/  County  of 
Son  Francisco,  66  California,  492;  56  Am.  Rep.  109,  citing  the  principal  case; 
Houck  v.  PKacA/ei'j  34  Maryland,  265  ;  0  Am.  Rep.  332,  counsel  citing  the  prin- 
cipal, case. 

The  special  sufferer  is  not  debarred  from  remedy  because  some  others  suffer 
from  the  same  cause.  Seifried  v.  Hays,  81  Kentucky,  :>77  ;  •">(>  Am.  Rep.  167. 
And  in  case  of  injury  to  private  property  or  the  impairment  of  individual 
health  and  comfort  by  the  carrying  on  of  offensive  trades  or  the  creation 
of  noisome  smells  or  disturbing  noises,  it  is  no  matter  how  extensive  or 
numerous  may  be  the  instances  of  discomfort  or  injury  to  persons  or  prop- 
erty thereby  occasioned.  Wesson  v.  Washburn  Iron  Co.,  13  Allen  (Mass.),. 
95;  90  Am.  Dec.  181  ;  and  to  same  effect,  Lansing  v.  Smith,  4  Wendell  (New 
York),  9 ;  21  Am.  Dec.  89  ;  Wylie  v.  Elwood,  134  Illinois,  2S1  ;  23  Am.  St. 
Rep.  673. 

In  Marsan  v.  French,  61  Texas,  173;  48  Am.  Rep.  272,  it  was  held  that  one 
may  be  restrained  by  an  adjacent  proprietor  from  renting  a  house  with 
knowledge  that  it  has  been  and  is  to  be  used  for  prostitution ;  so  Cranfora  v. 
Tyrrell,  128  New  York,  341 ;  but  the  contrary  was  held  in  Hamilton  v.  Whit- 
ridge,  11  Maryland,  128,  and  in  Anderson  v.  Doty,  33  Hun  (New  York  .Supreme 
Ct.),  160,  citing  the  principal  case. 

Subdiv.  (b)  There  has  been  a  great  deal  of  judicial  discussion  in  this- 
country  as  to  what  constitutes  a  "taking"  of  land  for  public  purposes,  within 
the  constitutions  of  the  States,  and  also  as  to  what  "  damage  "  furnishes  a 
ground  of  action  within  constitutions  which  recognise  damage  as  a  ground  of 
relief. 

It  is  held  by  the  weight  of  authority  in  this  country  that  an  act  done  under 
lawful  authority,  if  done  in  a  proper  manner,  can  never  subject  the  party 
doing  it  to  an  action,  whatever  consequences  may  follow.  By  Bronson,  C 
J.,  in  Radcliff's  Executors  v.  Mayor,  §•<?.,  4  New  York,  195.  And  so  it  was 
there  held  that  a  city,  acting  under  its  charter  authority  in  grading  and  level- 
ling streets,  and  exercising  proper  care  and  skill  in  the  execution  of  the  work, 
is  not  liable  for  consequential  injury  to  owners  of  adjacent  lands.  The  same 
was  held  in  Slatten  v.  Des  Moines  R.  Co.,  29  Iowa,  148;  4  Am.  Rep.  205,  the 
court  observing  "  the  rightful  and  bond  fide  exercise  of  a  lawful  power  or 
authority  cannot  afford  a  basis  for  an  action.  If  the  power  or  right  is  exer- 
cised carelessly,  negligently,  wrongfully,  improperly,  and  may  be  maliciously, 
the  party  so  exercising  it  maybe  liable  to  respond  in  damages  for  any  injury, 
direct  or  consequential,  resulting  to  another  from  thus  exercising  the  right  or 
power;  but  such  liability  can  only  arise  upon  and  for  the  manner  of  doing  the 
act,  and  not  for  the  act  itself." 

One  specially  injured  by  a  common  nuisance  may  maintain  an  action,  no- 
matter  how  inconsiderable  the  injury.     Brown  v.  Watson,  47  Maine,  161;  71 
Am.  Dec.  482.     But  equity  will  not  lend  its  aid  when  the  injury  is  trifling  oi 
transient.     3  Pomeroy  Equity  Jur.,  §§  1349,  1350. 

A  rare  and  trifling  injury  necessarily  resulting  from  a  lawful  business 
would  not  sustain  an  action  at  law.  Price  v.  Grantz,  118  Renn.  St.  -10l> ; 
4  Am.  St.  Rep.  601. 


GOO  ACTION  (right  of). 


No.  7.  —  Racket  v.  Metropolitan  Railway  Co.  —  Notes. 


A  street  may  be  temporarily  obstructed  in  the  proper  [prosecution  of  busi- 
ness, without  affording  any-  remedy  to  a  person  inconvenienced  thereby. 
Caltanan  v.  Gilvtan,  1<>7  New  York,  360;  1  Am.  St.  Rep.  831,  the  case  of  a 
bridge  across  a  sidewalk  to  move  goods  from  a  shop  to  waggons ;  and  same 
principle  in  Mathews  v.  Kelsey,  58  Maine,  56;  4  Am.  Rep.  248.  And  so  of  a 
temporary  detention  by  the  rebuilding  of  a  railway  bridge;  Rhea  v.  Newport, 
A  c.  R.  Co.,  50  Federal  Reporter,  16. 

In  Richardson  v.  Vermont  Cent.  R.  Co.,  25  Vermont,  465,  a  leading  case, 
where  the  defendant  in  the  construction  of  its  road  made  an  excavation  upon 
its  own  land  so  near  the  plaintiff's  adjoining  laud  that  it  slid  into  the  excava- 
tion, the  defendant  was  held  liable.  The  court  said:  "They  cannot  justify 
tin'  removal  of  the  plaintiff's  soil  by  any  powers  attempted  to  be  conferred 
upon  them,  either  by  their  charter  or  the  general  railroad  law,"  To  the  same 
effect;  Baltimore,  Sfc.  R.  Co.  v.  Reaney,  42  Maryland,  117. 

In  Memphis  &f  Ohio  R.  Co.  v.  Hicks.  5  Sneed  (Tennessee),  427,  it  was  held 
that  authority  to  erect  a  bridge  over  a  navigable  stream  in  such  a  way  as  not 
to  impede  navigation  does  not  justify  even  a  temporary  obstruction  while 
erecting  the  bridge. 

In  Hamden  v.  N.  II.  R.  Co.,  27  Connecticut,  158,  it  was  held  that  a  rail- 
road company  altering  a  highway  for  the  purposes  of  its  road  is  bound  to 
restore  it  to  its  former  condition,  and  this  liability  continues  until  it  is  done. 

In  Georgetown,  fyc.  R.  Co.  v.  Doyle,  9  Colorado,  549,  it  was  held  that  the  com- 
pany was  liable  for  injury  to  the  plaintiff's  adjacent  land  by  rocks,  etc.,  thrown 
upon  it  by  blasting  in  the  construction  of  its  road. 

In  Stodyhill  v.  Chicago,  Sfc.  R.  Co.,  42  Iowa,  26;  22  Am.  Rep.  211,  the  same 
was  held  as  to  the  diversion  of  a  natural  stream  of  water,  although  necessary. 

Subdiv.  (e)  The  principal  case  is  cited  in  Stewart  v.  Rutland,  58  Vermont, 
12,  holding  that  on  an  appraisal  of  damages  for  taking  of  land  for  a  sewer,  by 
an  incorporated  village,  consequential  damages  resulting  from  a  nuisance 
created  by  a  discharge  of  sewage  may  not  be  allowed.  The  court  said  :  "  Xow, 
in  this  State,  the  course  is,  when  private  property  is  taken  for  public  use  by 
the  exercise  of  the  right  of  eminent  domain,  and  no  different  rule  is  prescribed 
by  statute,  to  limit  compensation  to  damages  sustained  by  the  actual  taking 
of  the  property,  excluding  all  merely  indirect  and  consequential  damages. 
.  .  .  The  same  rule  prevails  generally  in  this  country.  Sedgwick  Stat,  and 
Const.  Law.  2d  ed.,  454,  et  seq.,  and  Pomeroy's  note.  But  a  different  rule  pre- 
vails in  England,"  under  The  Lands  Clauses  Act.  "But  this  section  is  held 
to  have  reference  only  to  cases  in  which  a  party  is  injuriously  affected  by 
reason  of  acts  unauthorised  to  be  done  by  a  public  company  in  pursuance  of 
the  provisions  of  its  own  private  act,  as  inapplicable  to  cases  in  which  the 
injury  complained  of  may  be  compensated  by  recourse  to  an  action  at  law,  as 
it  may  be  when  resulting  from  acts  not  authorised  by  statute,"  citing  Broad- 
bent  v.  Imperial  Gas-Light  Co.,  7  De  G.  M.  &  G.  436.  "  It  is  further  held  under 
said  section  of  The  Lands  Clauses  Act,  that  in  order  to  entitle  a  party  to  com- 
pensation thereunder,  the  injury  must  he  done  to  the  land  or  to  some  interest 
therein,  and  that  a  mere  personal  injury,  though  connected  with  the  enjoy- 
ment of  particular  land,  is  not  a  ground  of  compensation,"  citing  the  princi- 
pal case.     "  This  principle  is  applicable  to  the  case  at  bar.     The  gist  of  the 


SECT.  II.  —  FOIl   CArUSE   AFFECTING    PUBLIC.  601 

No.  8.  —  Mayor,  &/C,  of  Lyme  Regis  v.  Henley.  —  Rule. 

petitioner's  complaint  is  for  a  personal  injury,  in  that  the  rest  of  their  prem- 
ises are  rendered  less  enjoyable  by  reason  of  the  noxious  discharge  of  the 
sewer.  This  is  a  damage  ultra  the  taking'  of  land,  for  which  compensation,  it' 
attainable,  must  be  sought  in  some  other  way." 

The  principal  case  is  also  cited  by  Judge  Dillon  (2  Municipal  Corporations. 
878,  1231),  in  respect  to  indirect  injury  to  trade  by  the  lowering  of  a  roadway, 
or  by  the  establishment  of  an  elevated  railway ;  also  in  Lewis  on  Eminent 
Domain,  §229,  and  Redfield  on  Railways,  §  82,  subdiv.  15;  also  in  a  very 
learned  opinion,  in  Eaton  v  Boston,  #y\  11.,  51  New  Hampshire,  504;  12  Am. 
Rep.  1-17,  holding  that  the  plaintiff  might  recover  for  flooding  of  his  land  by 
the  cutting  of  a  protective  ridge  on  the  land  of  another,  this  being  a  "  taking  " 
for  which  no  compensation  had  been  made  ;  also  in  note,  25  Am.  Rep.  534. 


No.  8.—  MAYOK,   &c,  OF   LYME   REGIS   v.   HENLEY. 
(h.  l.  error  from  k.  b.  1834.) 

RULE. 

Where  a  corporation  have  a  grant,  made  by  lawful  au- 
thority for  a  public  purpose,  of  premises  on  the  seashore, 
which  declares  that  they  are  to  repair  the  buildings,  banks, 
and  seashores,  &c. ;  an  individual  specially  damaged  by  omis- 
sion to  repair  the  sea-defences  may  maintain  an  action 
against  the  corporation. 

Mayor,  &c,  of  Lyme  Regis  v.  Henley. 

2C1.  &Fin.     331. 

Action  on  the  case  by  the  defendant  in  error  (Henley)  against 
the  plaintiffs  in  error,  for  damages  sustained  by  him  through  their 
neglect  to  repair,  according  to  their  charter,  certain  sea-banks,  &c. 
The  declaration  in  the  first  count  stated  that  on  the  20th  of  June, 
in  the  10th  year  of  the  reign  of  Charles  I.,  that  King  by  his  letters- 
patent  did,  for  himself,  his  heirs,  and  successors  (amongst  other 
things)  give,  grant,  and  confirm  to  the  mayor  and  burgesses  of 
Lyme  Regis,  and  their  successors,  the  borough  or  town  of  Lyme 
Regis,  and  also  all  that  the  buildings  called  pierquay  or  cob  of 
Lyme  Regis,  with  all  and  singular  the  liberties,  privileges,  profits, 
franchises,  and  immunities  to  the  same  town,  or  to  the  said  pier- 
quay  or  cob,  in  any  wise  belonging;  to  have,  hold,  and  enjoy  the 
aforesaid,  &c,  to  the  said  mayor  and  burgesses,  and  their  succes- 


602  ACTION  (right  of). 


No.  8.  —  Mayor,  &,c,  of  Lyme  Regis  v.  Henley. 


sors,  to  the  only  and  proper  use  and  behoof  of  them  and  their 
successors,  in  fee  farm  forever,  yielding  of  fee  farm  to  the  said 
sovereign  lord  Charles,  his  heirs  and  successors,  of  and  for  the 
aforesaid  borough  or  town,  with  its  liberties  and  franchises,  as  in 
the  said  letters-patent  in  that  behalf  mentioned.  And  the  said  sov- 
ereign lord  Charles  did  further,  for  himself,  his  heirs,  and  succes- 
sors, pardon,  remise,  and  release,  to  the  said  mayor  and  burgesses, 
and  their  successors  forever,  twenty-seven  marks,  parcel  of  thirty- 
two  marks  of  the  farm  of  the  said  borough,  and  the  liberties  thereof, 
anciently  by  letters-patent,  or  in  any  other  manner  due,  the  said 
lord  King  Charles  willing  not  that  the  same  mayor  and  burgesses, 
or  their  successors,  or  either,  or  any  of  them,  should  be  charged  of 
the  further  portion  of  the  aforesaid  farm  of  thirty-two  marks,  lie- 
sides  the  aforesaid  five  marks;  but  that  they  and  their  successors, 
against  the  said  King  Charles,  his  heirs  and  successors,  should  be 
thereafter  acquitted,  and  from  time  to  time  forever  discharged  of  the 
aforesaid  yearly  twenty-seven  marks,  any  statute,  act,  ordinance, 
provision,  charters,  or  letters-patent  theretofore  made  to  the  con- 
trary thereof  in  any  wise  notwithstanding;  and  that  the  said 
mayor  and  burgesses  and  their  successors,  all  and  singular  of  the 
buildings,  banks,  seashores,  and  all  other  mounds  and  ditches 
within  the  said  borough  of  Lyme,  or  thereto  in  any  wise  belong- 
ing, or  situate  between  the  same  borough  and  the  sea,  and  also  the 
said  building  called  the  pierquay  or  cob,  at  their  own  costs  and 
■expenses  thenceforth  from  time  to  time  should  well  and  sufficiently 
repair,  maintain,  and  support,  as  often  as  it  should  be  necessary  or 
expedient;  and  the  said  King  Charles,  by  his  said  letters-patent, 
•did  grant  to  the  said  mayor  and  burgesses,  and  their  successors, 
that  the  mayor  of  the  same  for  the  time  being  forever  thereafter 
should  be  clerk  of  the  market  within  the  said  borough,  and  the 
liberties  and  precincts  of  the  same;  and  that  the  said  mayor  and 
burgesses,  and  their  successors,  all  and  singular  the  fines,  amerce- 
ments, and  sums  of  money  before  the  said  clerk  of  the  market,  by 
either  or  any  of  the  inhabitants  of  the  borough  or  town  aforesaid, 
after  the  date  and  making  of  the  said  letters-patent,  forfeited  or 
thereafter  to  be  forfeited  and  assessed  in  the  same  borough,  should 
have  and  enjoy  to  the  use  of  them  and  their  successors  forever, 
without  account,  or  any  other  thing  for  the  same  to  the  said  King 
<  Jharles,  his  heirs  or  successors,  in  any  wise  to  be  rendered  or 
_paid;  and  the  said  King  Charles,  did,  by  the  said  letters-patent, 


SECT.  II.  —  FOR    CAUSE    AFFECTING    PUBLIC.  G(K> 

No.  8.  —  Mayor,  &-c,  of  Lyme  Regis  v.  Henley. 

for  himself,  his  heirs,  and  successors,  give  and  grant  to  the  said 
mayor  and  burgesses,  and  their  successors,  full  power,  authority 
and  license  from  time  to  time  forever  to  dig  stones  and  rocks  in 
any  places  whatsoever,  within  the  borough  and  parish  of  the  town 
aforesaid,  out  of  the  sea  and  on  the  seashore,  in  the  borough  and 
parish  aforesaid,  adjoining  to  the  said  borough  or  town,  for  the 
reparation  and  amendment  of  the  port  and  building  called  the 
pierquay  or  cob,  and  other  necessary  reparations  and  comm<  n 
works  of  the  same  town  and  borough,  and  belonging  and  apper- 
taining to  the  buildings  aforesaid;  and  the  said  King  Charles 
did  also,  by  the  said  letters-patent,  will  and  grant  to  the  said 
mayor  and  burgesses,  and  their  successors,  that  they  should  have, 
hold,  use,  and  enjoy,  and  might  and  should  be  able  fully,  freely, 
and  entirely  to  have,  hold,  use,  and  enjoy  forever,  all  the  liberties, 
free  customs,  privileges,  authorities,  acquittances,  and  licenses 
aforesaid,  according  to  the  tenor  and  effect  of  the  said  letters- 
patent,  without  the  let  or  impediment  of  the  said  King  Charles 
his  heirs  or  successors,  or  his  or  their  justices,  sheriffs,  escheators, 
■bailiffs,  or  ministers.  Which  said  letters-patent  the  mayor  and 
burgesses  aforesaid  duly  accepted,  and  the  same  thence  hitherto 
have  been,  and  still  are,  one  of  the  governing  charters  of  the  said 
borough  ;  and  the  said  mayor  and  burgesses,  from  the  time  of 
their  acceptance  of  the  said  letters-patent,  hitherto  have  had,  held, 
received,  and  enjoyed  all  the  benefits,  profits,  and  advantages 
granted  to  them  by  the  said  letters-patent. 

The  declaration  further  stated  in  the  first  count,  that  before  and 
at  the  time  of  the  committing  of  the  grievances  as  thereinafter 
mentioned,  the  said  plaintiff  (the  defendant  in  error)  was  lawfully 
possessed  of  and  in  divers  messuages,  buildings,  and  closes  of  land, 
with  the  appurtenances,  situate  in  the  borough  aforesaid,  and  was 
entitled  in  reversion  to  divers  other  messuages,  buildings,  and 
closes  of  other  land,  with  the  appurtenances;  all  which  several 
messuages,  &c.,  with  the  appurtenances,  before  and  at  the  times  of 
the  committing  of  the  several  grievances  thereinafter  mentioned, 
were  abutting  in  or  near  the  seashore,  at  the  parish  aforesaid  ;  and 
that  before  and  at  the  time  of  sealing  of  the  said  letters-patent, 
and  acceptance  thereof,  as  aforesaid,  by  the  said  mayor  and  bur- 
gesses, and  also  at  the  time  of  the  committing  of  the  several 
grievances  by  the  snid  defendants  (plaintiffs  in  error)  as  therein- 
after   next    mentioned,    divers    buildings,    banks,    seashores,  and 


604  ACTION   (eight  of). 


No.  8.  —  Mayor,  &,c,  of  Lyme  Regis  v.  Henley. 


mounds,  had  been,  and  were  then  respectively  standing  and  being 
within  the  borough  of  Lyme  Regis  aforesaid ;  and  divers  other 
buildings,  banks,  seashores,  and  mounds,  had  been  and  respectively 
were  belonging  and  appertaining  to  the  said  borough ;  and  divers 
other  buildings,  banks,  seashores,  and  mounds,  had  been  and  were 
at  those  times  respectively  standing  and  being  and  situate  between 
the  said  borough  and  the  sea,  in  the  borough  aforesaid ;  all  which 
said  buildings,  banks,  seashores  and  mounds  respectively,  at  the 
times  of  the  committing  of  the  several  grievances  by  the  said 
defendants  (plaintiffs  in  error),  were  near  to,  and  then  and  there 
constituted  and  formed,  and  were  a  protection  and  safeguard,  and 
still  of  right  ought  to  form  and  be  a  protection  and  safeguard  to 
the  said  several  messuages,  buildings,  and  closes  of  land,  with  the 
appurtenances  aforesaid,  and  then  and  there  hindered,  prevented, 
and  still  of  right  ought  to  hinder  and  prevent,  the  sea,  and  the 
waves  and  waters  thereof,  from  running  or  flowing  in,  upon, 
against,  or  over  the  said  several  messuages,  buildings,  and  closes  of 
land ;  and  all  which  buildings,  banks,  seashores,  and  mounds,  the 
said  defendants  (plaintiffs  in  error),  at  the  times  of  the  committing 
of  the  several  grievances  by  them  as  thereinafter  mentioned,  were 
under  and  by  virtue  and  in  pursuance  of  the  aforesaid  letters- 
patent,  and  the  acceptance  thereof  as  aforesaid,  liable,  and  ought, 
at  their  own  proper  costs  and  charges,  well  and  sufficiently  to 
have  repaired,  maintained,  and  supported,  and  still  are  liable,  and 
ought,  at  their  own  proper  costs  and  charges,  well  and  sufficiently 
to  repair,  maintain,  and  support,  when  and  so  often  as  it  should  or 
might  have  been,  or  shall  or  may  be  necessary  or  expedient  so  to 
do,  so  as  to  prevent  damage  or  injury  to  the  said  messuages,  build- 
ings and  closes  of  the  said  plaintiff,  by  the  sea,  or  the  waves  or 
the  waters  thereof. 

Breach :  that  the  said  defendants,  well  knowing  the  premises, 
and  not  regarding  the  said  letters-patent,  nor  their  duty  in  that 
behalf,  but  contriving,  and  wrongfully  and  unjustly  intending  to 
injure,  prejudice,  and  aggrieve  the  said  plaintiff,  and  to  deprive 
him  of  the  use  and  benefit  of  his  several  messuages,  buildings,  and 
closes ;  and  also  to  injure,  prejudice,  and  aggrieve  him,  the  said 
plaintiff,  in  his  reversionary  interest  of  and  in  the  said  messuages, 
buildings,  and  closes  above-mentioned,  wrongfully  and  unjustly 
suffered  and  permitted  the  said  buildings,  banks,  seashores,  and 
mounds  to  be  and  continue  ruinous,  prostrate,  fallen  down,  washed 


SECT.  II.  —  FOR   CAUSE    AFFECTING    PUBLIC.  Oil,") 


No.  8.  —  Mayor,  &c.,  of  Lyme  Regis  v.  Henley. 


down,  out  <>f  repair,  ami  in  great  decay,  for  want  of  due,  needful, 
proper  and  necessary  repairing,  maintaining,  and  supporting  of  the 
same;  by  means  of  which  said  several  premises,  the  sea,  and  the 
waves  and  waters  thereof,  ran  and  flowed  with  great  force  and 
violence  in,  upon,  under,  over,  and  against  the  said  several  mes- 
suages, buildings,  and  closes  of  the  said  plaintiff,  in  which  he  was 
so  interested  as  aforesaid,  and  thereby  greatly  inundated,  damaj 
injured,  undermined,  washed  down,  heat  down,  prostrated,  levelled, 
and  destroyed  the  said  several  messuages  and  buildings;  and  the 
materials  of  the  same,  together  with  divers  cart-loads  of  earth  and 
soil,  and  divers  acres  of  the  said  several  closes,  were  washed  and 
carried  away ;  by  means  of  which  said  several  premises,  the  said 
plaintiff  not  only  lost  and  was  deprived  of  the  use,  benefit,  ami 
enjoyment  of  his  said  messuages,  buildings,  and  closes  in  this 
count  first  above  mentioned,  but  was  also  thereby  greatly  injured, 
prejudiced,  and  aggrieved  in  his  reversionary  estate  and  interest  of 
and  in  the  said  several  messuages,  buildings,  and  closes  in  this 
count  secondly  above  mentioned. 

There  were  other  counts  stating  a  liability  to  the  same  repairs 
by  prescription,  and  others  stating  it  by  reason  of  the  possession  of 
certain  closes.     The  defendants  below  pleaded  the  general  issue. 

The  cause  came  on  to  be  tried  before  Mr.  Justice  Littledale, 
at  the  spring  assizes  for  the  county  of  Dorset,  in  1828,  when  the 
jury  found  a  verdict  for  the  (plaintiff')  defendant  in  error,  on  the 
first  count,  with  £100  damages,  and  were  discharged  from  giving 
any  verdict  upon  the  other  counts.  In  the  following  Easter  Term, 
a  motion  in  arrest  of  judgment  was  made  in  the  Court  of  Common 
Pleas,  but  judgment  was  given  for  the  plaintiff  below,  5  Bing.  91. 

The  defendants  below  thereupon  brought  a  writ  of  error  in  the 
Court  of  King's  Bench,  where  the  judgment  of  the  Court  of  Common 
Pleas  was  affirmed,  3  Barn.  &  Ad.  77  ;  and  upon  that  judgment  the 
present  writ  of  error  was  brought  in  the  House  of  Lords. 

The  following  Judges  of  the  Common  Law  Courts,  besides  Lord 
Denman,  attended  in  the  House  when  the  case  was  argued,  viz., 
Chief  Justice  Tindal,  Mr.  Justice  Park,  Mr.  Baron  Bayley  ;  Jus- 
tices BOSANQUET,  GASELEE,  TAUNTON,  J.  PARKE,  PATTESON,  and 
Alderson  ;  Barons  VAUGHAN  and  Gurney. 

Mr.  Serjeant  Merewether,  for  the  plaintiffs  in  error.  There  is 
nothing  on  the  face  of  this  record  to  show  that  the  defendants 
below  were  liable,  by  reason  of  tenure,  to  the  repairs  of  the  sea- 


606  ACTION  (right  of). 


No.  8. — Mayor,  &.c,  of  Lyme  Regis  v.  Henley. 


shore.  The  passages  cited  from  Callis,  in  his  treatise  on  Sewersr 
and  urged  in  the  Court  below,  with  a  view  to  fix  the  liability  of  the 
defendants  rat  lone  tenurce,  are  doubtfully  expressed  and  cannot  be 
deemed  authority.  He  says,  "  in  cases  of  the  sea  and  royal  rivers, 
the  property  of  the  banks  and  grounds  adjoining  belong  to  the 
subject  whose  lands  do  butt  and  bound  thereon,  but  the  soil  of 
the  sea  and  royal  rivers  appertains  to  the  King,"  &c.  "  and  it  seems 
that  the  frontages  are  bound  to  the  repairs,  and  that  he  whose* 
grounds  are  next  adjoining  to  a  highway  is  bound  to  repair  the 
same."  The  last  clause  of  the  sentence  is  stated  too  broadly., 
and  is  not  the  law ;  and  the  former  part  of  it,  which  applies  to> 
this  question,  is  an  expression  of  doubt,  and  is  much  weakened  by" 
passages  in  other  pages.     See  Callis,  pp.  2,  115,  117,  118. 

The  chief  question  here  is,  whether  the  King  can,  by  his  letters- 
patent  or  charter,  create  a  new  duty.  It  does  not  appear  who,  or 
that  any  one,  was  compellable  to  repair  those  walls  and  banks 
before  the  date  of  Charles  the  First's  charter.  Did  the  King's 
charter  create  a  new  duty,  and  impose  on  the  corporation  of  Lyme 
the  charge  of  repairing  the  sea-walls,  subjecting  them  to  an  in- 
dictment or  action  at  the  suit  of  any  person  whose  property  in 
Lyme  might  be  damaged  in  consequence  of  the  non-repair  ?  The 
liability  to  such  action  or  indictment  could  arise  only  in  one  of 
four  ways,  —  viz.,  by  reason  of  prescription,  tenure,  acts  of  Parlia- 
ment, or  nuisances  to  public  rights.  There  is  no  case  or  other 
authority  to  show  it  could  arise  from  the  acceptance  of  a  grant 
from  the  King.  The  cases  cited  in  the  Court  below,  in  the  judg- 
ment for  the  defendant  in  error,  applied  to  liability  by  prescrip- 
tion, tenure,  act  of  Parliament,  or  public  nuisance;  such  as  Rex 
v.  Kerrison,  1  M.  &  S.  435,  and  3  M.  &  S.  526:  Paine  v.  Partridge, 
Carth.  191  ;  s.  c.  Show.  255, 12  Hen.  VII.,  fol.  18  ;  Rex  v.  Inhabitants 
of  Kent,  13  East,  220  ;  Rex\.  Inhabitants  of  Lindsay,  14  East,  317  ; 
Rex  v.  Stoughton,  2  Saund.  157,  160.  If  the  charter  annexed  to- 
the  grant  an  obligation  to  repair  the  sea-walls,  the  King  may  with- 
draw the  grant  if  the  grantees  do  not  perform  the  condition,  (Roll. 
Abr.  tit.  Franchise,  Com.  Dig.  Franchises) ;  so  that  the  obligation 
is  not  a  matter  of  public  duty,  but  a  covenant  between  the  King 
and  the  corporation,  which  a  stranger  to  it  cannot  have  a  right  to* 
enforce  by  action  or  by  indictment.  The  liability  of  the  plaintiffs 
in  error  to  an  indictment  for  nnn-rerformance  of  the  repairs  in 
question  is  assumed  in  the    i    '        nt   below  as   the  ground   on. 


SECT.  II.  —  FOR   CAUSE   AFFECTING    PUBLIC.  607 

No.  8.  —  Mayor,  &C.7  of  Lyme  Regis  v.  Henley. 

which  the  right  of  action  for  special  da  mane  rests,  3  Barn.  &  Ad. 
93.  According  to  Callis,  p.  115,  the  occupiers  of  lands  abutting 
on  the  sea  are  primarily  liable  to  protect  them  from  the  sea,  and 
the  liability  of  the  plaintiffs  in  error  to  protect  the  defendant,  if 
such  exists,  arises  from  their  agreement,  implied  from  their  accep- 
tance of  the  charter  of  Charles  the  First;  but  no  agreement  t<> 
become  liable  to  do  that  for  which  others  are  primarily  liable  will 
subject  a  party  to  an  indictment,  though  the  party  be  a  corporation 
aggregate,  and  though  a  sufficient  consideration  for  the  agreement 
be  shown,  and  the  public  interest  be  concerned  (Rex  v.  Mayor  of 
TAverpool,  3  East,  86) ;  nor  will  such  agreement  release  those  in 
whom  such  primary  liability  exists  (Bcgina  v.  Duchess  of  Buccleugh, 
1  Salk.  358).  The  charter  here  is  at  most  only  a  covenant  between 
the  King  and  the  corporation.  It  is  not  denied  that  an  obligation 
is  thereby  imposed  on  the  corporation,  but  there  is  no  duty  of  a 
public  nature  imposed,  so  as  to  render  the  corporation  liable  to  an 
indictment  for  neglect.  There  is  no  authority  for  holding  that 
any  one  of  the  King's  subjects  who  may  sustain  damage  by  rea- 
son of  the  non-repair,  can  indict  the  corporation  for  their  neglect, 
or  have  an  action  against  them  for  the  damage.  The  claim  of  the 
defendant  in  error  is  new  and  unwarranted  bylaw;  and  that  no 
precedent  is  found  for  the  right  claimed  by  him  is  a  matter  which 
ought  to  have  great  weight.  The  case  of  Popham  v.  Prior  of-Brea- 
morc,  11  Hen.  IV.  82,  and  Kcirjldcys  Case,  10  Co.  Rep.  139  a ,  do 
not  appear  to  sustain  this  action,  as  they  turned  on  the  principle 
of  liability  by  prescription.  In  the  case  of  The  Mayor  of  Lynn  v. 
Turner,  Cowp.  87,  on  which  reliance  was  placed  on  behalf  of  the 
plaintiff  below,  and  which  was  a  writ  of  error  to  the  King's  Bench. 
the  corporation  of  Lynn  was  sued  for  not  repairing  a  creek  of  the 
sea,  being  charged  to  be  liable  thereto  by  prescription  and  by  imme- 
morial usage,  —  two  material  distinctions  between  that  and  this  case. 
More  weight  has  been  given  to  the  words  of  Lord  Maxsfield,  in 
giving  judgment  in  that  case  than  is  properly  due  to  them.  It 
would  appear  from  the  argument  in  Churchman  v.  Tunstal,  Hardr. 
162,  that  an  action  or  indictment  lies  against  a  common  ferryman 
if  he  does  not  keep  his  ferry  in  good  repair,  but  that  a  private 
ferryman  is  not  so  liable,  —  a  distinction  which  is  analogous  to  this 
case.  But  that  case  and  Paine  v.  Partridge,  Show.  255  ;  Carth.  191, 
were  cases  of  liability  from  prescription  in  respect  of  ancient  fer- 
ries, which  most  materially  distinguished  them  from  this  case.     It 


008  ACTION    (RIGHT   OF). 


No.  8.  —  Mayor,  &,c,  of  Lyme  Regis  v.  Henley. 


may  be  supposed  from  an  expression  used  in  Russell  v.  The  Men  of 
Devon,  2  T.  II.  067  (1  R.  R.  585),  that  the  action  there  for  not 
repairing  a  county  bridge  would  well  lie  if  the  defendants  had 
been  a  corporation.  That  was  a  mere  diction,  urged  in  that  case 
beyond  its  merits,  and  it  is  opposed  to  The  King  v.  The  Mayor  of 
Liverpool,  3  East,  86  (6  R.  R.  546),  and  to  Harris  v.  Baler,  4 
M.  &  S.  27. 

There  was  another  class  of  cases  cited  below,  relating  to  the 
liability  of  officers  in  public  offices,  as  the  bank,  post-office,  &c. ;  but 
as  the  liability  of  these  officers  arises  under  acts  of  Parliament,  it 
is  not  necessary  to  examine  such  cases,  which  have  no  bearing 
upon  the  liability  to  which  it  is  attempted  to  subject  the  plaintiffs 
in  error,  by  virtue  of  the  King's  charter  within  time  of  memory. 

The  proper  remedy  for  the  injury  sustained  here  would  be  by 
information  at  the  suit  of  the  Attorney-General,  or  by  application 
to  the  Court  of  Chancery,  under  the  Act  4.'-!  Eliz.  c.  4,  which 
enables  the  Lord  Chancellor,  where  lands  have  been  granted  for 
reparation  of  sea-walls,  &c,  to  issue  a  commission  to  inquire  and 
direct  the  funds  to  be  appropriated  to  the  purposes  to  which  the 
grant  was  destined ;  or  by  proceeding  on  the  part  of  the  King  for 
a  forfeiture.     4  Vin.  476  ;  Com.  Dig.  tit.  Franchises. 

Mr.  Erie  rose  to  argue  on  the  same  side,  but  the  Lord  Chancel- 
lor suggested  that  the  House  should  hear  the  counsel  for  the 
defendant  in  error,  and  Mr.  Erie  should  have  the  reply.  The 
counsel  agreed  to  that  course,  and  Mr.  Bere,  who  was  second 
counsel  on  the  other  side,  did  not  address  the  House. 

Mr.  Follet,  for  the  defendant  in  error.  The  first  point  made 
in  the  argument  fur  the  plaintiffs  in  error  is,  that  no  condition  to 
repair  was  imposed  as  a  matter  of  public  duty  on  the  mayor  and 
burgesses  by  the  grant;  and  that  the  charter  contained  merely  an 
expression  of  the  King's  will  that  they  should  repair  and  maintain 
the  banks  and  seashore.  It  is  impossible  for  any  person,  attend- 
ing to  the  nature  of  the  grant,  the  remission  of  twenty-seven 
marks  of  the  ancient  rent,  the  grant  of  the  fines  and  amercements, 
and  the  license  to  dig  stones  within  the  town  for  the  reparation 
of  the  port  and  pier,  to  hold  that  the  charter  did  not  annex  to 
these  grants  the  obligation  to  repair.  The  corporation  having 
accepted  the  charter,  and  having  ever  since  enjoyed  the  privileges 
conferred  by  it,  must  also  take  the  burden  imposed.  The  benefits 
that  were  granted  were  the  consideration  for  the  performance  of 


SECT.  II.  —  FOR    CAUSli!    AFFECTING    PUBLIC.  609 

No.  8.  —  Mayor,   &,c,  of  Lyme  Regis  v.  Henley. 


the  duty.  The  corporation  shall  not  he  at  liberty  to  accept  the 
grant,  and  refuse  the  burden;  King  v.  Westwood,  4  Barn.  & 
C.  781;  Brett  v.  Cumberland,  Cro.  Jac.  399,  521.  Lord  Ten- 
terden,  after  citing  this  last  ease  in  his  judgment  in  the  Court 
below,  adds,  "So  here,  though  the  letters-patent  import  only  thai 
it  he  the  King's  will  that  the  corporation  should  repair,  yel  they, 
having  accepted  the  letters-patent,  and  enjoyed  the  benefits  and  ad- 
vantages granted  thereby,  have  testified  their  assent  that  this  shall 
be  considered  as  a  condition  or  obligation,  and  must  be  hound  accord- 
ingly; and  in  that  view  it  becomes  immaterial  to  inquire  whether 
or  not,  before  the  grant,  the  King  himself  was  bound  to  keep  the 
banks  and  seashores  in  repair."     3  Barn.  &  Ad.  92. 

The  plain  argument  upon  which  the  defendant  in  error  relies  is, 
that  where  the  King  by  his  grant  imposes  a  public  duty  on  a 
corporation  or  on  an  individual,  the  public  become  interested,  and 
have  a  right  to  see  that  the  duty  is  performed,  and  an  indictment 
will  lie  for  the  neglect ;  or  an  individual,  if  a  direct  injury  is  in 
consequence  sustained  by  him,  has  a  right  of  action.  This  last 
position  was  admitted  in  the  case  of  Paine  v.  Partridge,  Show. 
255  ;  s.  c.  Carth.  191,  and  is  well  warranted  by  the  cases  of 
Churchman  v.  Tunstal,  Hardr.  163;  Herbert  v.  Paget,  1  Lev.  64; 
Mayor  of  Lynn  v.  Turner,  Cowp.  86;  Lane  v.  Cotton,  1  Salk.  17; 
and  Comyn's  Digest,  title  Action  on  the  Case,  A  2,  A  .3.  The 
recent  case  of  Peter  v.  Kendal,  6  Barn.  &  C.  703,  applies  to  every 
oM'ence  and  grant  of  a  public  nature,  and  shows  that  wherever 
such  a  grant  is  made,,  there  a  duty  is  imposed ;  and  an  indictment 
will  lie  against  the  grantee  for  a  public  injury  arising  from  his 
neglect  or  non-performance  of  the  duty ;  or  an  action  on  the  case 
may  be  brought  against  him  by  any  individual  sustaining  a  par- 
ticular injury.  The  doctrine  laid  down  in  these  cases  is  not 
shaken,  but  rather  confirmed,  by  the  case  of  Russell  v.  The  Men  of 
Devon,  2  T.  R.  667,  which  was  an  action  against  the  inhabitants 
•  if  a  county  for  an  injury  sustained  by  an  individual  in  conse- 
quence of  the  non-repair  of  a  county  bridge,  and  it  was  held  not 
to  be  maintainable;  but  it  was  there  said  that  such  an  act  inn 
would  well  lie  against  a  corporation. 

The  next  question  for  consideration  is,  whether  the  declaration 

here  sufficiently  alleges  that  the  defendants  below  were  bound  to 

repair  ratione  tenures.     There  is  no  magic  in  these  words.     They 

were  in  possession  of  the  borough,  and  of  the  walls  and  hanks; 

vol.  i.  —  39 


610  ACTION    (RIGHT   OF). 


No.  8.  —  Mayor,  &-<:.,  of  Lyme  Regis  v.  Henley. 


that  cannot  be  denied  after  the  verdict.  By  reason  of  their  own- 
ership and  possession  they  became  liable  to  the  repairs  (Callis, 
115,  117);  and  the  declaration  sufficiently  alleges  that  liability  to 
have  been  created  by  the  charter,  and  does  not  aver  an  obligation 
more  extensive  than  the  duty  required  by  the  charter.  The  case 
of  Rex  v.  Kerrison,  1  M.  &  S.  435,  cited  on  the  other  side,  favours 
the  defendant  in  error.  The  indictment  there  charged  the  owner 
of  a  navigation  with  the  liability  to  repair  a  bridge  by  reason  of 
ownership,  without  showing  any  contract  or  obligation  annexed 
to  the  grant  of  the  navigation,  to  induce  a  liability  to  repair.  But 
here  the  grant,  and  the  condition  on  which  the  charter  was 
granted,  are  set  forth  in  the  declaration ;  and  whether  the  duty  is 
cast  on  a  party  by  prescription,  which  supposes  a  consideration,  or 
by  an  existing  grant  showing  the  consideration,  if  the  party  bound 
do  not  repair,  an  action  equally  lies  at  the  suit  of  the  party  injured 
by  the  neglect.  Keighlcy  Case,  10  Co.  Eep.  139  a.  These  cases  are 
strongly  applicable  to  this,  and  they,  as  well  as  most  of  the  au- 
thorities to  be  found  in  the  old  books  of  reports,  are  against  the 
interpretation  which  was  given  by  the  counsel  for  the  plaintiffs  in 
error  to  the  Statute  of  Sewers  (23  Hen.  VIII.).  There  is  a  case  in 
Hardr.  p.  169  (The  Earl  of  Devonshire  v.  Gibbons  and  others). 
referring  to  that  Statute,- — it  was  a  bill  reciting  articles  of  as^ree- 
ment,  made  between  the  Kins;  and  others,  for  draining  Hatfield- 
level,  by  which  the  King  was  to  have  a  third  part  of  the  lands 
obtained,  the  drainers  a  third,  and  the  tenants  and  commoners 
a  third.  The  plaintiff,  who  was  not  a  party,  or  deriving  from  a 
party,  to  the  articles,  was  assessed  towards  maintenance  of  a  cer- 
tain sewer  for  his  lands  in  Yorkshire,  and  his  bill  prayed  relief  from 
the  assessment,  according  to  the  equity  of  the  statute  of  Hen.  VIII. 
on  the  ground  that  he  was  "aggrieved  by  the  assessment, 
through  those  not  repairing  the  banks,  who  were  obliged  to  repair 
by  the  articles."  And  the  Court  seemed  to  lie  of  this  opinion, 
"  because  in  effect  the  articles  were  made  for  the  relief  of  all  that 
were  to  receive  any  damage  by  the  draining,  and  being  made  pro 
bono  publico,  all  persons  are  parties ;  as  if  one  man  should  take 
upon  himself  to  repair  a  public  causeway  which  the  country 
ought  to  repair,  by  this  means  he  makes  himself  liable  to  the 
whole  county  if  he  do  it  not."  There  is  a  clear  distinction  between 
the  liability  of  an  individual  and  of  a  corporation ;  that  is  laid 
down  in  Callis,  p.  117  (where  it  is  said  an  obligation  may  exist  by 


SECT.  IT. —FOR    CAUSE    AFFECTING    PUBLIC  Gil 

No.  8.  —  Mayor,  &c,  of  Lyme  Regis  v.  Henley. 

covenant  as  well  as  by  tenure),  and  is  noticed  by  Lord  MANSFIELD 
in  his  judgment  in  the  Mayor  of  Lynn  v.  Turner.  An  individual 
is  bound  by  reason  of  tenure  of  his  land;  but  a  corporation  accept- 
ing a  grant  is  bound  to  perform  the  duty  annexed  to  it,  without 
any  land.  It  is  not  therefore  necessary  that  the  obligation  to 
repair  should  lie  in  this  case  coupled  with  land ;  but  if  it  were, 
the  charter  does  grant  land:  it  grants  the  borough  and  cob;  so 
that  if  it  were  necessary  to  prove  that  the  corporation  are  bound 
ratione  tennrcr,  that  proof  is  not  wanting. 

Mr.  Erie,  in  reply.  The  plaintiffs  do  not  contend  that  the 
covenant  contained  in  the  letters-patent  did  not,  by  the  acceptance 
of  them,  impose  an  obligation  on  the  corporation  ;  there  may  be  a 
process  against  them  for  the  forfeiture  of  the  franchise,  or  other 
proceedings  before  referred  to,  but  they  are  not  liable  to  an  indict- 
ment or  action  at  the  suit  of  an  individual  who  is  a  stranger  to  the 
covenant.  There  is  no  case,  though  many  have  been  cited,  to  show 
that  any  one  of  the  King's  subjects  can  have  an  action  against  a 
corporation  for  not  repairing  sea-walls,  through  the  non-repair  of 
which  his  property  sustained  damage.  The  case  of  The  King  v. 
The  Mayor  of  Liverpool  shows  that  an  agreement  to  repair  a  road 
did  not  subject  a  corporation  to  an  indictable  liability  to  repair. 
That  case  is  a  sufficient  answer  to  the  inferences  drawn  from  Callis 
and  from  the  old  authorities.  In  all  the  cases  respecting  the  duty 
of  public  officers  there  were  known  relations  and  duties  between 
them  and  the  public,  defined  by  acts  of  Parliament,  and  they  have 
no  analogy  with  this  case.  The  charter  here  cannot  have  a  greater 
force  than  an  act  of  Parliament  ;  but  if  this  duty  was  imposed  in 
those  general  terms  by  act  of  Parliament,  the  corporation  would 
not  be  indictable  for  an  injury  to  a  private  individual.  The  banks 
and  mounds  in  question  were  stated  in  the  declaration  to  have 
been  a  protection  to  Mr.  Henley's  property,  and  not  to  the  houses 
and  property  of  the  public.  It  was  scarcely  possible  at  any  expense 
to  repel  the  encroachments  of  the  sea  on  these  banks ;  if  the  funds 
of  the  corporation  were  to  be  applied  to  the  protection  of  one  indi- 
vidual,, they  would  not  be  sufficient  for  that  purpose,  and  the  other 
inhabitants  would  be  without  protection. 

The   Lord   Chancellor   suggested  a  question  for  the  learned 
Judges,  and  the  further  consideration  of  the  case  was  adjourned. 

Mr.   Justice    Park    delivered    the    following   opinion    of    the 
Judges  :  — 


612  ACTION    (RIGHT    OF). 


No.  8.  —  Mayor,  &-c,  of  Lyme  Regis  v.  Henley. 


The  question  proposed  by  your  Lordships  fur  the  opinion  of  the 
Judges  is  as  follows  :  "  The  declaration  in  an  action  on  the  case 
against  the.  corporation  states,  that  before  the  committing  of  the 
grievances  by  the  said  defendants,  the  King,  by  his  letters-patent, 
duly  sealed,  did  give,  grant,  and  confirm  to  the  corporation  and 
their  successors  the  borough  or  town  of  Lyme  Regis  ;  also  all  that 
the  building  called  the  pierquay  or  cob  of  Lyme  Eegis,  with  the 
liberties,  franchises,  privileges,  and  immunities  to  the  same  town, 
pierquay,  or  cob,  in  any  wise  belonging,  to  the  only  proper  use  and  be- 
hoof of  the  corporation,  in  fee  farm  forever,  yielding  of  fee  farm  to  the 
Kim>-  as  in  the  letters-patent  mentioned;  and  that  the  King  thereby 
released  to  the  corporation  part  of  an  ancient  farm  of  a  sum  of 
money  due  from  them  annually,  willing  that  the  corporation  should 
be  thereof  acquitted,  and  that  the  corporation  and  their  successors 
all  and  singular  of  the  buildings,  banks,  seashores,  and  all  other 
mounds  and  ditches  within  the  said  borough,  or  to  the  said 
borough  in  any  wise  belonging  or  appertaining,  or  situate  between 
the  said  borough  and  the  sea,  and  also  the  said  building  called  the 
pierquay  or  the  cob,  at  their  own  costs  and  expenses  thenceforth 
from  time  to  time  forever  should  well  and  sufficiently  repair,  maintain, 
and  support,  as  often  as  it  should  be  necessary  or  expedient.  That 
the  King  also,  by  the  same  charter,  granted  fines  and  amercements 
before  the  clerk  of  the  market,  without  account;  and  a  license  to 
dig  stones  within  the  borough  and  parish  of  the  town,  out  of  the 
sea  and  on  the  seashore,  for  the  reparation  and  amendment  of  the 
port,  and  the  said  pierquay  or  cob,  and  other  necessary  reparations 
and  common  works  of  the  same  town  and  borough,  and  belonging 
and  appertaining  to  the  buildings  aforesaid.  The  declaration  then 
avers  that  the  charter  was  duly  accepted,  and  from  thence  hath 
been  and  still  is  a  governing  charter  of  the  borough,  and  that  the 
corporation  from  the  time  of  that  acceptance  hitherto  have  had, 
held,  received,  and  enjoyed  all  the  benefits,  profits,  and  advan- 
tages granted  to  them  by  the  said  letters-patent.  It  then  proceeds 
to  state  that  the  plaintiff  was,  at  the  time  of  the  committing  of 
the  grievances,  lawfully  possessed  of  a  messuage  and  land  in  the 
county  aforesaid,  to  wit,  in  the  said  borough,  which  were  before 
and  at  those  times  abutting  on  or  near  the  seashore.  That  a 
building,  bank,  and  seashore  within  the  borough,  a  building,  bank, 
or  seashore  belonging  and  appertaining  to  the  borough,  and  a 
building,  bank,  or  sea-shore  situate  between  the  said  borough  and 


SECT.  II.  —  FOR    CAUSE    AFFECTING    PUBLIC.  613 

No.  8.  —  Mayor,  &,c,  of  Lyme  Regis  v.  Henley. 

sea,  all  which  were  there  at  the  time  of  the  sealing  ami  accep- 
tance of  the  letters-patent,  and  at  the  time  of  the  committing  of 
the  grievances,  and  at  the  last-mentioned  time,  were  near  to,  and 
constituted  and  funned,  and  were  a  protection  and  safeguard,  and 
still  of  right  ought  to  be  so,  to  the  plaintiffs  messuage  and  land 
aforesaid,  and  then  hindered  the  sea  from  flowing  upon  and  over 
that  messuage  and  land  ;t  and  which  buildings,  bank,  seashores, 
and  mounds  the  defendants  were  at  those  times,  by  virtue  of  the 
said  letters-patent  and  acceptance,  liable  to  repair  at  their  own 
proper  costs  and  charges,  as  often  as  it  might  be  necessary  and 
expedient  to  do  so. 

"  A  breach  is  then  assigned,  that  the  corporation  wrongfully 
permitted  the  said  buildings,  banks,  seashores,  and  mounds  to  be 
out  of  repair,  for  want  of  due,  proper,  and  necessary  repairing  of 
the  same ;  by  means  of  which  the  plaintiffs  house  and  land  was 
inundated  and  injured. 

"After  a  verdict  upon  a  plea  of  not  guilty,  is  this  declaration 
good,  and  does  it  disclose  a  sufficient  cause  of  action  by  the  plain- 
tiff against  the  corporation  ?  " 

In  order  to  make  this  declaration  good,  it  must  appear,  first, 
that  the  corporation  are  under  a  legal  obligation  to  repair  the 
place  in  question  ;  secondly,  that  such  obligation  is  matter  of  so 
general  and  public  concern  that  an  indictment  would  lie  against 
the  corporation  for  non-repair ;  thirdly,  that  the  place  in  question 
is  out  of  repair ;  and  lastly,  that  the  plaintiff  has  sustained  some 
peculiar  damage  beyond  the  rest  of  the  King's  subjects  by  such 
want  of  repair. 

The  third  and  last  requisites  are  admitted  to  he  averred  in  this 
declaration,  and  with  sufficient  words,  at  least  after  verdict.  The 
doubt  in  the  case  arises  upon  the  first  and  second  requisites. 
With  regard  to  the  first,  it  is  argued  that  the  corporation  have  not, 
by  the  acceptance  of  the  charter  stated  in  the  declaration,  incurred 
any  legal  obligation  whatever  as  to  the  repair  of  the  place  in 
question  ;  that  the  charter  does  not  contain  a  grant  on  condition 
that  the  corporation  shall  repair,  but  merely  an  expression  of  the 
King's  will  that  they  shall  repair. 

Looking  at  the  words  of  the  charter,  as  stated  in  this  declaration, 
we  are  of  opinion  that  it  does  cast  upon  the  corporation  an  obliga- 
tion to  repair,  which  they,  by  accepting  the  charter,  have  adopted. 
The  King  grants  and  confirms  to  the  corporation    the    town,  or 


614  ACTION    (RIGHT    OF). 


No.  8.  —  Mayor,  &c,  of  Lyme  Regis  v.  Henley. 


borough,  and  pier,  with  the  liberties,  franchises,  and  privileges,  and 
immunities  to  the  same  belonging,  in  fee  farm  forever,  yielding  of 
fee  farm  to  the  King  as  therein  mentioned ;  and  the  King  remits 
part  of  an  ancient  rent,  willing  that  the  corporation  should  be 
thereof  acquitted ;  and  then  the  charter  goes  on  in  these  words: 
"  And  that  the  corporation  and  their  successors,  all  and  singular  of 
the  buildings,  banks,  seashores,  and  all  other  mounds  and  ditches 
within  the  said  borough,  or  to  the  said  borough  in  any  wise  belong- 
ing  or  appertaining,  or  situate  between  the  said  borough  and  the 
sea,  and  also  the  said  building  called  the  pierquay  or  the  cob,  at 
their  own  proper  costs  and  expenses  thenceforth  from  time  to  time 
forever  should  well  and  sufficiently  repair,  maintain,  and  support 
as  often  as  it  should  be  necessary  or  expedient." 

Now,  these  words  are  undoubtedly  an  expression  of  the  King's 
will  that  the  corporation  should  repair;  but  they  are  not  the  less 
a  condition  on  that  account.  On  the  contrary,  they  show  the  con- 
sideration for  the  grant,  the  motive  inducing  the  King  to  make  the 
grant,  and,  consequently,  the  terms  and  conditions  on  which  the 
grant  was  to  be  accepted.  What  effect  such  words  might  have  in 
a  grant  from  one  subject  to  another  it  is  not  necessary  to  deter- 
mine. Such  a  grant  between  subjects  is  a  matter  of  contract  and 
bargain,  strictly  so  speaking;  but  a  grant  from  the  King  to  a 
subject  is  a  matter  of  favour,  and  the  language  used  will  be  found 
to  vary  accordingly.  Independently  of  authorities  we  should  have 
come  to  this  conclusion,  but  the  case  of  St7'  JoJni  Brett  v.  Cumber- 
land, Cro.  Jac.  521,  seems  to  us  to  be  decisive  of  the  question. 
That  was  an  action  of  covenant  by  the  assignee  of  King  James  I. 
against  the  executors  of  the  lessee  of  a  mill  under  letters-patent  of 
Queen  Elizabeth,  sealed  with  her  seal  only,  and  containing  these 
words:  "  Et  pnedictus  Willielmus,  executores  et  assignati  sni, 
prsedicturii  molendinum  et  domus  et  sedificia  hide  sufficienter 
reparabunt."  The  first  question  was,  whether  these  words  in  the 
letters-patent  to  which  the  Queen's  seal  only  was  affixed,  shall 
enure  as  a  covenant  to  bind  the  lessee  and  his  assigns;  and  it  was 
resolved  "  that  it  should,  for  the  lessee  takes  thereby,  because  it  is 
a  matter  of  record:  although  in  show  they  be  the  words  of  the 
lessor  only,  yet  he  accepting  thereof  and  enjoying  it,  it  is  as  well 
liis  covenant  in  fact,  and  shall  bind  him  as  strongly  as  if  it  had 
been  a  covenant  by  indenture."  So  in  the  charter  in  question,  the 
words  are  in  show  the  words  of  the  King  only,  but  the  corporation 


SECT.  II. FOR    CAUSE    AFFECTING    PUBLIC.  G15 

No.  8.  —  Mayor,  &,c,  of  Lyme  Regis  v.  Henley. 

having  accepted  the  charter  and  enjoyed  the  benefits  of  it,  as  is 

averred  in  the  declaration,  they  are  as  strongly  bound  as  if  they 
had  covenanted  expressly  by  an  indenture. 

The  second  requisite  is,  in  truth,  that  upon  which  this  case 
wholly  turns,  —  viz.,  that  the  obligation  must  be  matter  of  so 
general  and  public  concern  that  an  indictment  will  lie  for  the 
breach  of  it.  Now,  this  depends  principally  upon  the  construction 
which  ought  to  be  put  upon  the  words  of  the  charter.  They  are 
undoubtedly  of  a  very  general  nature:  "All  and  singular  the 
buildings,  banks,  seashores,  and  all  other  mounds  and  ditches 
within  the  said  borough,  or*  to  the  said  borough  belonging,  or 
situate  between  the  said  borough  and  the  sea."  It  is  asked,  do 
these  words  embrace  every  little  ditch  or  bank  within  the  limits 
of  the  borough,  whether  public  or  private;  and  if  not,  where  is  the 
limit?  The  answer  is,  that  they  embrace  only,  such  buildings, 
banks,  seashores,  mounds,  and  ditches,  within  or  belonging  to  the 
borough,  or  situate  between  the  borough  and  the  sea,  as  form  part 
of  the  defences  and  safeguards  of  the  borough  against  the  encroach- 
ments  of  the  sea.  This  may  be  gathered  from  the  context,  from 
the  word  "seashores,"  from  the  expression  "situate  between  the 
borough  and  the  sea,"  and  from  the  obvious  intention  and  scope  of 
the  charter,  as  stated  in  the  declaration.  It  seems  to  us  that  such 
construction  and  limitation  of  the  words  is  necessary  in  order  to 
give  this  part  of  the  charter  any  meaning,  and  that  no  violence  is 
done  either  to  the  grammatical  or  reasonable  sense  of  the  words  by 
.such  construction. 

If  so,  the  next  question  which  arises  is,  whether  the  keeping  up 
the  sea  defences  of  a  town  or  borough  is  a  matter  of  general  and 
public  concern.  It  is  said  that  the  repair  of  a  highway  or  a  bridge 
is  matter  of  public  concern,  because  all  the  King's  subjects  may 
have  occasion  to  use  it.  And  why  may  not  all  the  King's  subjects 
have  occasion  to  reside  in,  or  to  pass  through,  the  borough  of 
Lyme?  It  may  be  difficult  to  define  precisely  over  what  quantity 
>f  land,  or  to  how  large  a  district,  any  benefit  must  be  extended  in 
order  to  render  such  benefit  a  matter  of  general  and  public  concern ; 
but  surely  no  danger  or  inconvenience  can  arise  from  holding 
that  it  is  sufficient  if  such  benefit  extended  to  a  whole  town  or 
borough. 

But  it  is  said  that,  even  if  the  repair  of  the  sea-defences  of  a 
town  or  borough  be  matter  of  general  and  public  concern,  yet  that 


GIG  ACTION   (right  of). 


No.  8.  —  Mayor,  &-c,  of  Lyme  Regis  v.  Henley. 


the  declaration  in  this  case  does  not  show  that  the  particular 
"  buildings,  hanks,  seashores,  mounds,  or  ditches,"  alleged  to  he 
out  of  repair,  are  part  of  the  sea-defences  of  the  borough,  nor  is  it 
expressly  averred  that  the  public  had  any  interest  in  them.  The 
answer  is,  that  the  buildings,  banks,  seashores,  mounds,  or  ditches 
in  question  are  described  in  the  declaration  in  the  very  words  used 
in  the  charter,  as  set  out  in  the  declaration,  and  are  expressly 
averred  to  have  been  in  existence  at  the  time  when  the  charter 
was  granted  and  accepted  ;  and  it  is  also  expressly  averred  that 
the  corporation  were  liable  under  the  charter  to  repair  them. 
Now,  these  words  in  the  averments  of  the  declaration  must  be 
understood  in  the  same  sense  as  the  same  words  in  the  charter ;. 
and  as  we  are  of  opinion  that  the  true  construction  of  them  in  the 
charter  is  to  understand  them  as  limited  to  the  sea-defences  of  the 
borough,  so  we  think  they  are  to  be  taken  to  have  the  same 
meaning  in  the  declaration,  and  to  have  the  same  effect  as  if  the 
buildings,  banks,  seashores,  mounds,  or  ditches  in  question  were 
expressly  averred  to  be  part  of  the  defences  and  safeguards  of  the 
borough  and  town  against  the  encroachments  of  the  sea.  And  this 
opinion  is  further  strengthened  by  the  circumstance  that  the 
present  objection  arises  after  verdict,  The  effect  of  a  verdict  in 
curing  defects  in  the  pleadings  at  common  law  is  stated  correctly 
in  one  of  the  last  cases  on  the  subject,  —  viz.,  that  of  Jackson 
v.  Pcskcd,  1  Maule  &  S.  234.  There  Lord  Ellenborough  said: 
"  Where  a  matter  is  so  essentially  necessary  to  be  proved,  that  had 
it  not  been  given  in  evidence,  the  jury  could  not  have  given  such 
a  verdict,  there  the  want  of  stating  that  matter  in  express  terms 
in  a  declaration,  provided  that  it  contains  terms  sufficiently  gen- 
eral to  comprehend  it  in  fair  and  reasonable  intendment,  will  be 
cured  by  verdict;  and  where  a  general  allegation  must,  in  fair 
construction,  so  far  require  to  be  restricted,  that  no  judge  and  no 
jury  could  have  properly  treated  it  in  an  unrestrained  sense,  it  un- 
reasonably be  presumed,  after  verdict,  that  it  was  so  restrained  at 
the  trial ;  but  unless  the  allegation  is  of  such  a  nature  that  it 
would  have  been  doing  violence  to  the  terms,  as  applied  to  the 
subject-matter,  to  have  treated  it  as  unrestrained,  we  are  not  aware 
of  any  authority  which  will  warrant  us  in  presuming  that  it  was 
considered  as  restrained  merely  because,  in  the  extreme  latitude  of 
the  terms,  such  a  sense  might  be  affixed  to  them."  Here  we  think 
that  the  allegations  of  the  declaration,  as  applied  to  the  subject- 


SECT.  II.  —  FOR   CAUSE   AFFECTING    PUBLIC.  617 

No.  8.  —  Mayor,  &c,  of  Lyme  Regis  v.  Henley. 

matter,  do  by  reasonable  intendment  show  that  the  buildings, 
banks,  mounds,  and  ditches  in  question  were  part  of  the  defenci  s 
and  safeguards  of  the  town  and  borough  against  the  encroachments 
of  the  sea,  and  particularly  of  that  part  of  the  town  and  borough 

in  which  the  plaintiff's  property  is  situated.  The  declaration, 
therefore,  shows  a  charter  casting  an  obligation  on  the  corporation 
to  do  repairs  of  general  and  public  concern,  and  avers  that  they 
have  omitted  to  do  such  repairs,  and  that  the  plaintiff  has  thi  reby 
sustained  special  damage.  It  is  not,  indeed,  shown  that  the 
plaintiffs  house  existed  at  the  time  when  the  charter  was  granted; 
neither  can  this  be  necessary;  for  if  the  obligation  to  repair  be  of 
a  public  nature  concerning  the  whole  borough,  the  whole  borough 
has  a  right  to  be  protected,  and  it  is  immaterial  whether  the  inun- 
dation affects  the  lands,  or  houses  at  any  time  erected  on  those 
lands. 

It  is,  however,  further  urged,  that  whatever  engagement  the 
corporation  may  be  under  as  between  them  and  the  Crown,  so  as 
to  render  them  liable  either  to  forfeiture  of  their  charter,  or  any 
other  proceeding  by  the  Crown,  yet  that  no  stranger  can  take 
advantage  of  such  engagement  and  maintain  an  action.  It  is 
admitted  that  if  their  liability  arose  by  prescription,  they  would 
be  indictable,  and  also  an  action  would  lie  for  special  damage,  as 
in  The  Mayor,  &c,  of  Lynn  v.  Turner,  Oowp.  86;  Churchman  v. 
Tunstali  Show.  255;  Carth.  199;  Paine  v.  Partridge,  Hardr.  162, 
and  many  other  authorities,  which  it  is  unnecessary  to  cite,  because 
it  is  clear  and  undoubted  law  that,  wherever  an  indictment  lies 
for  non-repair,  an  action  on  the  case  will  lie  at  the  suit  of  a 
party  sustaining  any  peculiar  damage.  Now,  we  are  unable 
to  see  any  sound  distinction  between  a  liability  by  prescription 
and  a  liability  arising  within  time  of  memory,  but  legally  created. 
We  do  not  say  that  prescription  necessarily  implies  a  charter  or 
grant,  but  it  necessarily  implies  some  legal  origin,  and  charter 
would  be  a  legal  origin.  Suppose  that  a  prescriptive  obligation 
were  alleged,  and  that  a  charter  granted  before  time  of  memory 
were  produced,  and  so  the  legal  origin  were  shown,  would  that 
destroy  the  prescription?  Certainly  not,  Would  the  obligation 
arising  from  that  charter  have  been  less  binding  within  a  few 
years  after  it  was  granted  than  it  is  now,  after  a  great  lapse  of 
time?  Certainly  not.  If,  then,  the  origin  be  legal,  how  can  it  be 
important  when  it  took  place  ?     We  do  not  go  the  length  of  say- 


618  ACTION1  (right  of)! 


No.  8.  —  Mayor,  &/C,  of  Lyme  Kegis  v.   Henley. 


ing  that  a  stranger  can  take  advantage  of  an  agreement  between 
A.  and  B.,  nor  even  of  a  charter  granted  by  the  King,  where  no 
matter  of  general  and  public  concern  is  involved  ;  but  where  that 
is  the  case,  and  the  King,  for  the  benefit  of  the  public,  has  made 
a  certain  grant,  imposing  certain  public  duties,  and  that  grant  has 
been  accepted,  we  are  of  opinion  that  the  public  may  enforce  the 
performance  of  those  duties  by  indictment,  and  individuals  pecu- 
liarly injured,  by  action.  If  it  were  otherwise,  many  inconven- 
iences would  follow  ;  and  among  them,  in  the  case  in  question,  is 
this  :  that  as  the  duty  and  the  right  to  repair  the  sea-defences  of 
the  town  and  borough  are  cast  upon  the  corporation,  no  other 
person  would  be  justified  in  interfering  and  doing  repairs,  however 
necessary  ;  or,  at  all  events,  not  until  the  corporation  had  been 
called  upon,  and  neglected  to  do  them;  The  Earl  of  Lonsdale  v. 
Nelson,  2  B.  &  C  302  ;  s.  c.  3  Dowl.  &  R.  556 ;  and  it  is  doubtful 
whether  he  would  be  justified  even  then,  the  proper  remedy  being, 
as  there  stated,  by  indictment  or  action ;  for  nuisances  of  omission 
cannot  in  general  be  abated. 

Two  of  the  Judges  have  entertained  considerable  doubts  whether 
the  declaration  contains  sufficient  words  in  this  case  to  show  that 
the  mounds  or  banks  were  of  such  public  benefit  as  that  an  indict- 
ment would  lie  for  not  repairing  them  :  but  agreeing  in  the  general 
view  of  the  law,  they,  as  well  as  the  rest  of  the  Judges  who  heard 
the  argument,  are  of  opinion  that  the  question  proposed  by  your 
Lordships  must  be  answered  in  the  affirmative,  and  that  the  decla- 
ration is  sufficient. 

The  Lord  Chaxcellor  said,  after  the  unanimous  judgment  of  the 
Court  of  Common  Pleas,  and  the  concurring  judgment  of  three  of 
the  Judges  in  the  Court  of  King's  Bench  upon  the  writ  of  error 
brought  there,  the  fourth  Judge  giving  no  opinion,  it  was  matter 
of  satisfaction  to  him  that  all  the  Judges  now  agreed  in  the  opinion 
which  their  Lordships  heard  now  delivered.  Two  of  the  learned 
Judges  entertained  some  doubt  upon  the  pleadings,  in  respect  to 
a  point  which  did  not  affect  the  main  question.  He  should  move 
that  the  judgment  of  the  Court  below  be  affirmed  ;  but  although 
the  two  Courts  below  concurred  in  the  judgment,  yet  it  wras  not 
a  case  in  which  costs  ought  to  be  charged  against  the  plaintiffs 
in  error,  as  there  was  some  doubt,  and  the  question  was  one  of 
difficulty. 

Lord  Wyxford  concurred  in  these  observations. 

The  judgment  of  the  Court  below  was  affirmed,  without  costs. 


SECT..II.  —  FOR   CAUSE   AFFECTING    PUBLIC.  619 

No.  8.  --  Mayor,  &c  .  of  Lyme  Regis  v.  Henley.  —  Notes. 


ENGLISH   NOTES. 

For  the  general  principle  that  the  plaintiff,  who  has  suffered  special 
damage  from  an  indictable  nuisance,  may  maintain  an  action  for  the 
damage,  the  primary  authority  is  the  final  decision  by  the  consulted 
judges  of  the  Common  Pleas  and  Exchequer  in  the  case  of  Iveson  v. 
Moore  (cited  on  p.  595,  supra)  as  reported  by  Lord  Raymond,  486,  1 95. 
This  general  principle  is  assumed  throughout  the  cases  collected  under 
the  last  preceding  rule  (No.  7,  p.  573,  et  set/.,  ante).  In  Fritz  v.  Hobson 
(1880),  14  Ch.  D.  542,  555;  49  L.  J.  Ch.  321,  Fry,  J.,  cited  the  decision 
in  Iveson  v.  Moore  as  one  of  great  authority,  and  applied  it  to  the  case 
in  point,  where  the  plaintiff  complained  that  the  access  to  his  shop  was 
unnecessarily  and  unreasonably  interfered  with,  and  frequently  blocked 
up  by  the  defendant  during  certain  building  operations.  The  learned 
Judge  in  this  case  came  to  the  conclusion  on  the  evidence,  that  the  in- 
terference with  the  access  by  the  defendant  was  unreasonable,  and  so 
distinguished  the  case  from  those  cases  where  by  a  lawful  work  a  slight 
inconvenience  is  necessarily  caused  to  the  public. 

AVhat  is  an  inconvenience  which  the  public,  as  well  as  any  indi- 
vidual, must  temporarily  submit  to,  is  a  point  illustrated  by  the  obser- 
vations of  Lord  Ellknborough  in  R.  v.  Jones  (1812),  3  Camp.  230, — 
a  case  where  the  defendant  (a  timber  merchant)  had  over-stepped  the  rea- 
sonable limit  by  using  the  public  highway  as  part  of  his  timber-yard. 
He  says:  "A  cart  or  waggon  may  be  unloaded  at  a  gateway;  but  this 
must  be  done  with  promptness.  So  as  to  the  repairing  of  a  house:  the 
public  must  submit  to  the  inconvenience  occasioned  necessarily  in  re- 
pairing the  house;  but  if  this  inconvenience  is  prolonged  for  an  unrea- 
sonable time,  the  public  have  a  right  to  complain,  and  the  part}'  may 
be  indicted  for  a  nuisance."  And  by  the  same  authority  in  R.  v.  Cross 
(1812),  3  Camp.  224,  227,  — a  case  where  the  defendant  constantly  kept 
his  coaches  standing  on  the  public  highway:  "No  one  can  make  a 
stable-yard  of  the  King's  highway."  Another  case  where  the  defen- 
dant was  held  to  have  over-stepped  the  reasonable  limit  was  R.  v.  Russell 
(1805),  6  East,  427;  8  E,  E.  506.  The  defendant  in  a  public  street 
kept  waggons  loading  and  unloading  for  several  hours  at  a  time,  day 
and  night.  He  was  held  indictable,  although  there  was  always  room 
for  two  carriages  to  pass  on  the  opposite  side  of  the  street.  An  instruc- 
tive case  on  the  other  side  is  Original  Hartlepool  Co.  v.  Gibb  (1877). 
5  Ch.  D.  713;  4G  L.  J.  Ch.  311,  where  the  Master  of  the  Rolls  de- 
cided that,  where  a  riparian  owner  has  a  wharf  on  the  bank  of  a  navi- 
gable river  (which  is  a  public  highway),  he  is  entitled  to  moor  a  vessel 
of  ordinary  size  alongside  his  wharf  for  the  purpose  of  loading  or  un- 
loading, at  and  for  a  reasonable  time. 


620  ACTION  (right  of). 


No.  8.  —  Mayor,  &c,  of  Lyme  Regis  v.  Henley.  ■ —  Notes. 

The  above  ruling  case  applies  the  general  principle  to  a  case  where 
the  obligation  to  the  public  is  incurred  ratione  tenant',  and  by  reasoc 
of  the  privileges  conferred  by  the  authority  (lawfully  exercised)  of  a 
Crown  grant.  A  similar  principle  is  well  established  in  cases  where 
statutory  privileges  have  been  conferred  upon  a  body  incorporated  for 
public  purposes,  and  entitled  to  take  tolls  for  the  use  of  their  works. 
< >f  this  class  of  cases  The  Mersey  Dock  Trustees  v.  G'tbbs  (H.  L.  1866), 
L.  K.,  1  H.  L.  93;  35  L.  J.  Ex.  225.  is  an  example.  It  was  an  action 
of  damages  by  the  shipowner  whose  ship  had  been  damaged  by  an  ob- 
struction consisting  of  an  accumulation  of  mud,  cvc.  negligently  left  by 
the  servants  of  the  docks  trustees  at  the  entrance  of  one  of  their  docks. 
The  decision  of  the  House  of  Lords  (after  verdict  and  a  bill  of  excep- 
tions) was  that  the  defendants  were  liable.  The  decision  is  rested  on  a 
principle  somewhat  different  to  that  of  the  ruling  case,  —  namely,  that 
the  special  Act  by  which  the  docks  trustees  were  entitled  to  take  tolls 
for  the  use  of  their  works  created  an  obligation  quasi  ex  contractu  be- 
tween them  and  the  persons  using  the  works;  and  that  there  was  a 
duty,  under  such  contractual  relation,  to  take  care  that  their  docks  were 
kept  in  a  tit  state  for  the  use  of  the  ships  entering  them.  The  same 
principle  is  followed  and  applied  to  a  harbour  authority  neglecting  to 
buoy  a  wreck,  in  Dormant  v.  Furness  By.  Co.  (Kay,  J.,  1883),  11  Q.  B.  D. 
496;  52  L.  J.  Q.  B.  331;  and,  by  the  Judicial  Committee  of  the  Privy 
Council,  to  the  executive  government  of  a  colony  in  its  character  of  a 
harbour  authority  (the  government  being,  by  an  Act  of  the  Legislature 
of  the  colon^y,  amenable  to  an  action  in  the  form  of  a  petition  of  right;; 
The  Queen  v.  Williams  (1884),  9  App.  Cas.  418;  53  L.  J.  P.  C.  64. 

In  Coe  v.  Wise  (Ex.  Ch.  from  Q.  B.  1866),  L.  B.,  1  Q;  B.  711;  :;7 
L.  J.  Q.  B.  262,  the  same  principle  is  applied  to  an  action  against 
statutory  drainage  and  navigation  commissioners,  by  a  landowner  whose 
land  was  flooded  and  damaged  by  a  negligent  defect  in  their  works. 
Ami  in  this  case  it  does  not  appear  that  there  was  any  quasi-contrac- 
tual relation  between  the  defendants  and  the  plaintiff  by  reason  of 
his  paying  tolls,  or  being  rated,  for  the  defendant's  works.  But  with 
this  case  may  be  contrasted  that  of  Sanitary  Commissioners  of  Gibral- 
tar v.Orfila  (P.  C.  1890),  15  App.  Cas.  400;  59  L.  J.  P.  C.  95,  where 
sanitary  commissioners  had  certain  old  highways  vested  in  them  with 
the  duty  to  control,  manage,  and  maintain  them;  and  the  fall  of  a 
retaining  wall  through  faults  in  the  original  construction  caused  dam- 
age to  the  adjoining  property  of  the  plaintiff.  It  was  not  proved  that 
the  commissioners  were  negligently  ignorant  of  the  defect,  which 
could  not  have  been  ascertained  without  a  special  survey  of  the  ori- 
ginal structure;  and  the  Judicial  Committee  of  the  Privy  Council 
decided   that   the   commissioners    were   not   liable.      the   question   was 


SECT.   II.  —  FOR   CAUSE   AFFECTING    PUBLIC.  G21 

No.  8.    -Mayor,  &,c,  of  Lyme  Regis  v.  Henley.  —  Notes. 

whether  there  had  been  neglecl  of  a  duty  expressly  or  impliedly  imposed 
on  the  commissioners  by  the  statute  or  order  which  constituted  them; 
and  the  Judicial  Committee  held  there  was  nut. 


AMERICAN   NOTES. 

The  doctrine  of  the  principal  case  has  been  generally  adopted  in  this  country 
in  respect  to  municipal  corporations  charged  by  their  charters  with  a  special 
duty  and  injuries  resulting  from  their  negligent  failure  to  discharge  that 
duty.  To  this  point  the  principal  case  is  cited  by  Harris  (1  Damages  by  Cor- 
porations, 128)  ;  Dillon  (1  Municipal  Corporations,  242)  ;  Beach  (1  Public  Cor- 
porations, 129). 

The  prevalent  doctrine  is  well  and  sufficiently  expressed  in  Welsh  v.  Village 
of  Rutland,  56  Vermont,  228;  48  Am.  Rep.  762,  766,  as  follows:  — 

"  When,  however,  municipal  corporations  are  not  in  the  exercise  of  their 
purely  governmental  functions  for  the  sole  and  immediate  benefit  of  the  pub- 
lic, but  arc  exercising,  as  corporations,  private  franchise  powers  and  privi- 
leges, which  belong  to  them  for  their  immediate  corporate  benefit,  or  dealing 
with  property  held  by  them  for  their  corporate  advantage,  gain,  or  emolu- 
ment, though  inuring  ultimately  to  the  benefit  of  the  general  public,  then 
they  become  liable  for  negligent  exercise  of  such  powers  precisely  as  are  indi- 
viduals. Hill  v.  Boston,  122  Mass.  344;  102  id.  499;  s.  c.  2:5  Am.  Rep.  332; 
Eastman  v.  Meredith,  36  X.  H.  284;  Providence  v.  Clapp,  17  How.  161.  So  of 
the  construction  and  maintenance  of  waterworks  :  Murphy  v.  Lo/cell,  128  Mass. 
396  ;  s.  c.  35  Am.  Rep.  381  ;  City  of  Dayton  v.  Pease,  4  Ohio  St.  80;  Gibson 
v.  Preston,  L.  R.,.5  Q.  B.  219;  Southcote  v.  Stanley,  1  Hurlst.  &  N".  217;  2  id. 
20  1;  1  id.  67;  of  ditches  or  drains:  Chicago  v.  Langlass,  52  111.  256;  s.  c.  i 
Am.  Rep.  603;  44  111.  295;  of  bridges  or  culverts,  and  in  respect  of  struc- 
tures which  may  obstruct  the  flow  of  natural  watercourses  and  of  the  pol- 
lution of  them  by  sewage  and  the  like:  Hill  v.  Boston,  supra:  Wheeler  v. 
Worcester,  10  Allen,  591;  4  id.  41  ;  Parker  v.  Lowell,  11  Gray,  353;  Conrad 
v.  Ithaca,  16  X.  Y.  158;  Merri  field  v.  Worcester,  110  Mass.  216;  Hazelfine 
v.  Case,  46  Wis.  391;  s.  c.  32  Am.  Rep.  715;  High  Waterc.  96;  Wood 
Nuis.  §  688;  and  public  works  and  improvements  generally:  Lyme  Reqis 
v.  Henley,  3  B.  &  Ad.  77;  Nebraska  City  v.  Campbell,  2  Black,  590;  1  id.  :'»'» : 
Dai/'on  v.  Pea^e,  4  Ohio  St.  SO;  Bigelow  v.  Randolph,  14  Gray,  543;  <  'hild 
v.  Boston,  4  Allen,  41.  This  rule  has  been  held  to  apply  to  the  discharge  of 
sewage  or  other  noxious  substances  in  such  manner  as  to  pollute  the  surface 
water  and  damage  the  property  of  individuals.  Winn  v.  Rutland,  52  Vt.  181  : 
Gale  Easem.  308  ;  Merrifield  v.  Lombard,  13  Allen,  16  ;  Johnson  v.  Jordan,  2  Mete. 
234  ;  and  if  a  plan  adopted  for  public  works  must  necessarily  cause  injury  or 
peril  to  private  persons  or  property,  though  executed  with  due  care  and  skill, 
the  law  regards  the  execution  of  such  a  plan  as  negligence.  2  Thoinp.  Neg. 
742;  Haskell  v.  New  Bedford,  108  Mass.  208;  30  Ind.  235;  35  Mich.  296;  33 
Ala.  116;  3  N.  Y.  163." 

In  Conrad  v.   Ithaca,  16  New  York,  163,  the  court   said:  "The    principle 
which  really  lies  at  the  basis  of  the  case  of  Henley  v.  Mayor,  Sfc,  of  Lyme  Regis 


622  ACTION   (right  of)- 


No.  8.  —  Mayor,  &.c,  of  Lyme  Regis  v.  Henley.  —  Notes. 

and  of  the  series  of  English  cases  upon  the  authority  of  which  that  case  was 
decided,  is  this:  That  whenever  an  individual  or  a  corporation,  for  a  consid- 
eration received  from  the  sovereign  power,  has  become  bound  by  covenantor 
agreement,  either  express  or  implied,  to  do  certain  things,  that  individual  or 
corporation  is  liable,  in  case  of  neglect  to  perform  such  covenant,  not  only  to 
a  public  prosecution  by  indictment,  but  to  a  private  action  at  the  suit  of  any 
person  injured  by  such  neglect.  In  all  such  cases  the  contract  made  with  the 
sovereign  power  is  deemed  to  inure  to  the  benefit  of  every  individual  inter- 
ested in  its  performance.  That  this  is  the  true  doctrine  on  the  subject,  may, 
I  think,  be  conclusively  shown."  etc.  And  so  the  commissioners  of  highways 
of  a  village  were  there  held  liable  for  the  negligent  construction  of  a  bridge 
by  reason  of  which  the  plaintiff's  real  property  was  injured. 

The  principal  case  is  cited  with  approval  also  in  Foster  v.  Lookout  M'xter 
Co.,  3  Lea  (Tennessee),  42  ;  33  Am.  Rep.  8,  note;  Toicn  of  Waltham  v.  Kem- 
per, 55  Illinois,  340  ;  8  Am.  Rep.  G55. 

See  also  as  declaring  the  same  doctrine,  Starrs  v.  City  of  Utica,  17  New 
York,  104;  Mills  v.  City  of  Brooklyn,  32  New  York,  t89 ;  Meares  v.  Town  of 
Wilmington,  9  Iredell  (No.  Carolina).  7:!;  Pittsburgh  v.  drier,  22  Penn.  St., 
54;  Smoot  v.  Mayor,  24  Alabama,  112;  Barnes  v.  District,  91  United  States, 
540,  citing  the  principal  case;  Richmond  v.  Long,  17  Grattan,  375;  Ward  v. 
Jefferson,  24  Wisconsin,  342;  McCombs  v.  Akron,  15  Ohio,  476;  Uannon  v.  St. 
Louis  Co.,  62  Missouri,  313;  Anne  Arundel  Co.  v.  Duckett,  20  Maryland,  468; 
Browning  v.  Springfield,  17  Illinois,  143;  Jones  v.  New  Haven,  34  Connecticut, 
1  ;  Aldrich  v.  Tripp,  11  Rhode  Island,  141  ;  23  Am.  Rep.  431 ;  Helena  v.  Thomp- 
son, 29  Arkansas,  509;  Galveston  v.  Posnainsky,  02  Texas,  US;  Oliver  v.  Wor- 
cester, 102  Massachusetts,  489;  3  Am.  Rep.  485;  Osage  City  v.  L.arkin,  40 
Kansas.  206;  10  Am.  St.  Rep.  186;  OWeil  v.  City  of  New  Orleans,  30 
Louisiana  Animal,  220;  31  Am.  Rep.  221;  Albrittin  v.  Mayor,  60  Alabama, 
486  :  'M  Am.  Rep.  46  ;  Sherwood  v.  District  of  Columbia,  3  Mackey  (Dist.  Col.), 
276;  51  Am.  Rep.  776. 

The  contrary  was  held  in  Chope  v.  Eureka,  78  California,  588;  4  Lawyers' 
Rep.  Annotated,  325,  with  notes,  the  Chief  Justice  and  another  dissent- 
ing; in  Detroit  v.  Blakeby,  21  Michigan,  81;  4  Am.  Rep.  450,  Cooley,  J., 
dissenting;  Lansing  v.  Toolan,  37  Michigan,  1 52 ;  Gibbes  v.  Beaufort,  20  So. 
Carolina,  213  ;    Young  v.  City  Council,  20  So.  Carolina,  110;  47  Am.  Rep.  827. 

The  majority  of  the  decisions  are  grounded  on  the  distinction,  early  made 
by  Nelson,  C.  J.,  in  Bailey  v.  New  York,  3  Hill  (New  York).  531,  between  the 
public  and  the  private  capacity  of  municipal  corporations,  and  recognised  by 
Dillon  (2  Municipal  Corporations,  §  907),  and  Cooley  (Constitutional  Limita- 
tions, 217).  And  the  ingredient  of  negligence  is  essential.  Radcliff  v. 
Mayor,  4  New  York,  195;  53  Am.  Dec.  357,  and  so  it  was  there  held  that 
there  is  no  liability  on  the  part  of  the  city  for  consequential  injury  from  the 
slitting  down  of  a  street,  when  skilfully  performed. 


SECT.  III. — WHERE   ADEEMED    OR   ABRIDGED    BY    STATUTE.       623 
No.  9.  —  Hammersmith  Railway  Co.  v.  Brand.  —  Rule. 


Section  III. —  WJiere  adeemed  or  abridged  by  Statute. 

No.  9 —HAMMERSMITH    RAILWAY  CO.  v.  BRAND. 

(ii.  l.   1869.) 

RULE. 

An  action  will  not  lie  for  damage  necessarily  resulting 
from  the  exercise  of  the  powers  of  an  Act  of  Parliament, 
in  a  case  for  which  no  provision  as  to  compensation  or 
liability  is  made.  Such  damage  is  damnum  absque  injuria. 
No  such  provision  is  made  by  The  Lands  Clauses  Con- 
solidation and  Railways  Clauses  Consolidation  Acts  in 
regard  to  the  detriment  to  neighbouring  houses  by  the 
vibration  caused,  not  immediately  by  the  construction  of 
the  works,  but  by  the  running  of  trains  upon  the  railway. 
So  decided  by  the  House  of  Lords,  reversing  the  judgment 
of  the  Exchequer  Chamber,  and  affirming  the  original 
judgment  of  the  Court  of  Queen's  Bench. 

Hammersmith  Ry.  Co.  v.  Brand. 

L.  R.,  4  II.  L.  171  (s.  c.  38  L.  J.  Q.  B.  265). 

This  was  a  proceeding  in  error  against  a  judgment,  on  a  special 
case,  given  in  the  Exchequer  Chamber,  which  had  reversed  a  pre- 
vious judgment  of  the  Court  of  Queen's  Bench,  Law  Rep.  1  Q.  B. 
130  ;  Law  Rep.  2  Q.  B.  223  ;  7  B.  &  S.  1.  The  facts,  as  set  forth,  of 
the  special  case  were  these:  — 

Mr.  Robert  Monkhouse  Piper  was  in  his  lifetime  seized  in  fee  of 
certain  property  at  Hammersmith,  and  resided  there  in  a  house 
known  as  Cumberland  House.  He  died  in  October,  1863,  having 
made  a  will,  by  which  his  widow,  Mary  Catherine  Louisa,  became 
entitled  to  the  property. 

The  "Hammersmith  and  City  Railway  Act"  (24  &  25  Vict. 
c.  clxiv.)  had  been  passed  in  the  year  1861,  and  empowered  certain 
persons   therein  named   to   make  and   maintain  a   railway.      The 


624 


ACTION    (RIGHT    OF). 


No.  9. — Hammersmith  Railway  Co.  v.  Brand. 


Lands  Clauses  Consolidation  Act,  1845,  and  The  Railways  Clauses 
Consolidation  Act,  1845,  were  incorporated  in  this  special  Act.1 

The  railway  was  constructed  under  this  Act,  and  was  completed 
about  August,  1863,  and  was  opened  for  public  traffic  in  June,  1864. 
It  was  then  used,  not  by  the  defendants  who  constructed  the  line, 
but  by  the  Great  Western  Railway  Company.  No  part  of  Cum- 
berland House,  or  of  the  lands  or  premises  belonging  to  it,  was 
taken  for  the  purposes  of  the  railway.  Mrs.  Piper  continued  after 
the  death  of  her  husband  to  reside  in  Cumberland  House,  and  on 
the  9th  of  July,  1864,  caused  to  be  served  on  the  directors  of 
the   Hammersmith  Railway  a  notice  claiming  compensation  "  for 


1  8  Vict.  c.  18  (Lands  Clauses  Con- 
solidation Act,  1845)  §  48;  "jury  to 
inquire  "I'  and  assess  the  damage  or  coih- 
pensation  in  respect  of  which  "  &c.  Jurors 
to  take  oath  that  they  will  "  faithfully 
inquire  and  assess  such  compensation  or 
damage  " 

§  49  distinguishes  between  verdict  for 
money  to  he  paid  for  the  purchase  of 
lauds  required  for  the  works,  or  any 
interest  therein,  and  the  compensation 
"for  the  damage,  if  any,  to  be  sustained 
by  the  owner  of  the  lands,"  by  severance, 
or  by  otherwise  injuriously  affecting  such 
lands  In/  tlit  exercise  of  the  powers  of  this  or 
of  the  special  Act,"  &C. 

5j  63.  "  Iu  estimating  the  purchase- 
money  or  compensation,  regard  shall  be 
had  not  only  to  the  value  of  the  land,  but 
also  to  the  damage,  if  any,  to  be  sustained 
by  the  owner  of  the  lands  "by  reason  of 
the  severing.  &c.  "or  otherwise  injuriously 
affecting  such  other  Iain's  In/  reason  of  the 
exercise  of  the  powers  of  this  or  the  special 
Act."  &c. 

§  68.  "  If  any  party  shall  be  en- 
titled to  any  compensation  in  respect  of 
any  lands  or  of  any  interests  therein, 
which  sha.ll  have  been  taken  for,  or  injn- 
riousli/  averted  by,  the  execution  of  the 
works,''  &c,  the  mode  of  proceeding  is 
directed. 

§  69  provides  for  limited  interests  of 
"persons  not  entitled  to  sell  or  convey 
the  lands." 

The  Railways  Clauses  Consolidation 
Act,  1845  (8  Vict.  c.  20),  has  this  heading: 
"  And  with  respect  to  the  construction  of 
Hie  railway  and  the  works  connected 
therewith.be  it  enacted  as  follows:  (§  6). 


In  exercising  the  powers  given  by  the  spe- 
cial Act  to  construct  the  railway  and  to 
take  lands  for  that  purpose,  the  company 
shall  lie  subject  to  the  provisions  and  re- 
strictions contained  in  this  Act  and  in  The 
Lands  Clauses  Act,  and  "  shall  make  to 
the  owners  and  occupiers  of,  and  all  other 
parties  interested  in,  any  lauds  taken  or 
used  for  the  purposes  of  the  railway. 
or  injuriously  affected  by  the  construction 
thereof,  full  compensation  for  the  value 
of  the  land  so  taken  or  used  and  for  all 
damage  sustained  by  such  owners,  occu- 
piers, and  other  parties  by  reason  of  the 
exercise  as  regards  such  lands  of  the 
powers  by  this  or  the  special  Act  or  any 
Act  incorporated  therewith,  vested  in  the 
company,"  and  then  follows  provisions 
as  to  the  mode  of  ascertaining  the 
compensation. 

§  10.  "Subject  to  the  provisions  in 
this  and  the  special  Act,  &c,  contained, 
the  company  may,  for  the  purpose  of  con- 
structing the  railway,  &c,  execute  the 
following  works."  The  works  are  then 
mentioned.  "They  may  do  all  other  acts 
necessary  for  making,  maintaining,  alter- 
ing, or  repairing  and  using  the  railway," 
provided  that,  in  the  exercise  of  these 
powers,  "the  company  shall  do  as  little 
damage  as  can  be,  and  shall  make  full 
satisfaction  in  manner  herein  and  in  the 
special  Act,  &c,  provided,  to  all  parties 
interested  for  all  damage  by  them  sus- 
tained by  reason  of  the  exercise  of  such 
powers." 

§  86  gives  authority  to  a  company  to 
employ  locomotive  power,  carriages,  &c, 
and  to  charge  tolls  for  the  carriage  of 
passengers  and  goods. 


SECT.  III.  —  WHERE    ADEEMED    OK    ABRIDGED    BY    STATUTE.       625 

No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 

damage  and  injury  done,  or  caused  to  be  done,  and  which  will 
hereafter  arise  and  be  occasioned  to  my  property,  by  the  exercise 
by  you  of  the  powers  conferred  on  you  by  the  several  acts  of 
Parliament   relating  thereto,  and  in  the  course  of,  and  in,  and  by, 

the  making'  and  execution  by  you  of  the  said  railway,  and  of  the 
works  connected  therewith, and  by  the  working  and  use  of  the  said 
railway  and  consequential  thereon,"  and  the  notice  went  on  in  lie- 
usual  form  to  state  the  particulars  of  the  compensation  claimed. 
The  directors  issued  their  warrant  to  summon  a  special  jury,  and 
on  the  inquiry  taking  place,  Mrs.  Piper  claimed  compensation  in 
respect  of  the  following  matters:  "1.  For  the  obstruction  of  light 
and  air  and  way.  2.  For  damage  to  the  garden  by  lime  dust  and 
smoke,  in  the  course  of  construction  of  the  railway  in  the  lifetime 
of  E.  M.  Piper.  3.  For  the  working  of  the  railway  and  the  run- 
ning of  trains  over  it  after  it  had  been  constructed  and  opened  for 
traffic,  which  had  occasioned  and  always  would  occasion  vibration, 
noise,  and  smoke ;  the  said  premises,  by  reason  of  their  being  sub- 
jected to  such  vibration,  noise,  and  smoke  from  passing  trains, 
were,  and  always  would  be  affected  and  further  depreciated  in 
value."  Evidence  was  given  under  all  these  heads  of  claim.  The 
case  stated  that  "  It  did  not  appear  that  any  structural  injury  was 
caused  to  the  house  or  out-buildings  by  the  construction  of  the 
railway ;  but  it  did  appear,  and  it  was  admitted  for  the  purposes 
of  this  case,  that,  by  reason  of  the  working  of  the  railway  after  it 
had  been  opened  for  traffic,  the  house  and  buildings  were,  and 
would  be  subjected  to  vibration,  noise,  and  smoke  from  passing 
trains,  and  were  and  always  would  be  affected  and  depreciated  and 
lessened  in  value  thereby."  The  evidence  in  support  of  this  part 
of  the  claim  was  admitted  under  protest.  The  defendants  for- 
mally objected  that  the  plaintiff  was  not  entitled  to  any  compensa- 
tion under  the  third  head  of  claim,  and  in  order  that  the  question 
might  be  conveniently  raised,  it  was  agreed  that  the  amount  of 
compensation  should  be  assessed  under  each  head  of  claim,  and  this 
was  done  accordingly.  The  third  head  of  claim  was  thus  assessed 
in  the  verdict :  "  For  vibration  from  the  use  of  the  railway,  after 
construction  as  before  mentioned,  £272." 

Judgment  was  entered  up  for  the  whole  sum  assessed,  of  which 
this  last  item  formed  part. 

Mrs.  Piper  afterwards  married  Mr.  G.  Horatio  Brand.  She 
received  the  other  sums,  and  her  husband  and  herself,  after  the 
vol.  i.  — 40 


626  ACTION  (eight  of). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


marriage,  brought  an  action  of  debt  in  the  Queen's  Bench  for 
payment  of  the  £272. 

A  special  case  was  prepared  under  The  Common  Law  Procedure 
Act,  1852,  for -the  opinion  of  the  Court  of  Queen's  Bench,  and  the 
question  was  stated  to  be  :  "  Whether  the  said  plaintiff  is  entitled 
to  have  compensation  made  to  her  by  the  defendants  in  respect  of 
the  matters  falling  under  the  third  head  of  claim?" 

The  case  was  argued  before  Mr.  Justice  MELLOR  and  Mr.  Justice 
Lush,  who  held  that  the  claim  was  not  in  law  sustainable,  and 
that  judgment  must  be  entered  for  the  defendants.  It  was  carried 
to  the  Exchequer  Chamber,  where  it  was  fully  argued  before  Lord 
Chief  Justice  Erle,  Lord  Chief  Baron  Pollock,  Mr.  Baron  Bram- 
well,  Mr.  Baron  Channell,  Mr.  Justice  Keating,  and  Mr.  Justice 
Montague  Smith.  Before  the  judgment  was  delivered,  the  Lord 
Chief  Justice  and  the  Lord  Chief  Baron  resigned  their  offices,  and 
judgment  was  finally  pronounced  by  the  remaining  Judges,  when 
the  judgment  of  the  Court  of  Queen's  Bench  was  (diss.  Mr.  Baron 
(  iiaxxel)  reversed.1 

The  case  was  then  brought  up  to  this  House  on  error.  The 
Judges  were  summoned,  and  Mr.  Justice  AVilles,  Mr.  Baron  BRAM- 
well.  Mr.  Justice  Blackburn,  Mr.  Justice  Keating,  Mr.  Baron 
Pigott  and  Mr.  Justice  Lush  attended. 

The  case  having  been  argued, 

The  Lord  Chancellor  (Lord  Cairns)  proposed  the  following 
question  to  the  Judges  :  — 

Were  the  defendants  in  error  entitled  to  have  compensation 
made  to  them  by  the  plaintiffs  in  error  for  the  vibration  in  respect 
of  which  damages  were  assessed  by  the  jury  as  mentioned  in  the 
special  case? 

This  question  was  answered  by  five  of  the  Judges,  Mr.  Justice 
Willes,  Mr.  Baron  Bramwell,  Mr.  Justice  Keating,  Mr.  Baron 
Pigott,  and  Mr.  Justice  Lush,  in  the  affimative ;  and  by  Mr.  Jus- 
tice Blackburn  in  the  negative.  The  reasons  given  by  Mr.  Baron 
Bramwell  on  the  one  side  and  Mr.  Justice  Blackburn  on  the 
other  are  here  given,  as  fairly  representing  these  divergent  views. 

BRAMWELL,  B.  Tn  this  case  it  must  be  taken  that  the  jurors 
have  found  that  by  the  ordinary  working  of  a  railway  line,  by  the 

1  Mr.   Justice    Byles   and  Mr.    Baron     its   conclusion,    and   did    not  deliver  any 
Pigott  heard   part   of  the  argument   in     opinion, 
the  Exchequer  Chamber,  but  left  before 


SECT.  III.  —  WHERE    ADEEMED   OR    ABRIDGED    l;V    STATUTE.       627 
No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 

passing  of  trains,  without  negligence  of  design,  by  what,  in  short, 
is  practically  necessary  (as  we  arc  told)  for  the  using  of  the  line 
by  the  defendants  below  and  those  who  pay  them  for  its  use,  a 
nuisance  will  be  caused  to  the  occupiers  of  the  premises  of  the 
plaintiffs  below  by  vibration  to  such  an  amount  that  the  o  en 
piers,  if  without  remedy,  will  pay  the  plaintiffs  for  the  occupa- 
tion from  time  to  time  a  less  sum  than  they  otherwise  would, 
the  fee  simple  or  capitalised  value  of  which  is  £272.  For  tlii 
nuisance,  the  occupiers  would  from  time  to  time  be  entitled  to 
maintain  actions  {Jones  v.  The  Festiniog  Railway  Company,  Law 
Rep.  .'!  Q.  B.  733)  unless  some  statute  has  legalised  the  nuisance 
with  or  without  compensation,  by  which  I  mean  the  statutory 
•compensation  they  have  claimed.  If  the  nuisance  is  so  legalised, 
no  action  is  maintainable,  whether  or  not  then1  is  a  right  to  such 
•compensation.  On  the  other  hand,  if  it  is  not  legalised,  an  action 
is  maintainable;  and  it  is  agreed  on  all  hands  that,  if  an  action  is 
maintainable,  the  defendants  in  error  are  not  entitled  to  have  com- 
pensation made  to  them  by  the  plaintiffs  in  error  for  the  vibration 
in  respect  of  which'  damages  were  assessed  by  the  jury,  as  men- 
tioned in  the  special  case. 

But  for  the  cases  I  shall  refer  to,  I  should  be  of  opinion  that 
such  nuisance  was  not  legalised,  that  the  occupiers  would  be 
entitled  from  time  to  time  to  maintain  actions  for  the  nuisance, 
that  consequently  the  plaintiffs  below  would  not  be  entitled  to  com- 
pensation, and  that  your  Lordships'  question  should  be  answered 
in  the  negative. 

It  is  for  those  who  say  that  this  nuisance  is  legalised  and  the 
right  of  action  taken  away  to  show  it.  For  this  purpose  reliance 
is  placed  on  the  clauses  of  The  Railways  Clauses  Act,  8  Vict.  c.  20, 
and  especially  on  section  86,  authorising  the  use  of  locomotives 
and  carriages  which  will  cause  the  vibration  in  question.  It  is 
said  that  these  clauses  show  that  locomotives  and  carriages  may 
be  used,  and  consequently  that  no  action  nor  indictment  lies  for 
their  use;  and  no  doubt  this  has  been  so  held  in  Bex  v.  Pease, 
4  B.  &  Ad.  30  ;  s.  c.  2  Law  J.  Rep.  (x.  s.)  M.  C.  26  ;  and  in  Vauglian 
v.  The  Tiff  Vale  Hallway  Company,  5  Hurls.  &  N.  679,  ("Acci- 
dent "  No.  8,  p.  296  supra).  With  great  respect,  I  think  those  cases 
clearly  wrong,  and  that  they  have  proceeded  on  an  inadvertent 
misapprehension  of  the  object  and  effect  of  the  clauses  in  question. 
What  that  object  and  effect  are  I  will  proceed  to  point  out. 


628  ACTION    (RIGHT    OF). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


The  private  Act  of  a  railway  company  whereby  it  is  constituted 
is  its  deed  of  settlement  declaring  what  are  the  purposes  and 
objects  of  the  company.  It  always  begins  by  erecting  a  corpora- 
tion for  the  purpose  of  making  a  certain  railway.  If  it  stopped 
there,  the  company  could  not  act  as  carriers,  nor  furnish  locomo- 
tive powTer,  nor  do  more  than  make  their  railway  and  receive  tolls 
for  its  use.  Anything  else  would  be  ultra  fires,  as  would  now 
be  their  keeping  an  hotel  or  having  steamboats  without  special 
powers  for  that  purpose.  Moreover,  the  courts  of  common  law- 
have  held  that  the  powers  of  these  statutory  corporations  are 
limited  to  the  purposes  for  which  they  are  created,  and  that  an 
agreement  for  anything  else  entered  into  by  them  is  not  merely 
ultra  vires  and  void,  but  illegal.  See  The  East  Anglian  Railway 
Company  v.  The  Eastern  Counties  Railtray  Coin  pan//,  11  Com.  B. 
Eep.  775;  s.  c.  21  Law.  J.  Rep.  (x.  s.)  C.  P.  23;  Gage  v.  The  New- 
market Railway  Company,  18  Q.  B.  Rep.  457;  s.  c.  21  Law.  J.  Rep. 
(N.  S.)  Q.  B.  398,  and  many  other  cases.  Your  Lordships  are  aware 
that,  for  the  same  reasons,  canal  companies  could  not  act  a.=  car- 
riers on  their  own  canals  till  an  Act  of  Parliament  enabled  them  to 
do  so.  This  would  have  been  the  situation  of  the  railways  but  for 
the  clauses  in  question.  Those  clauses  have  no  other  object  or 
effect,  as  I  submit,  than  to  obviate  the  objection  I  have  referred  to. 

Your  Lordships  will  find  that  they  begin  with  a  general  heading, 
"With  respect  to  the  carrying  of  passengers  and  goods  upon  the 
railway,  and  the  tolls  to  be  taken  thereon."     All  that  follows  this 
heading  is  to  be  construed  in  reference  to  it.      See   The  E>  stern 
Counties  Railway  Company  v.  Marriage,  9  H.  L.  Cas.  32;  s.  c.  31 
Law.  J.  Rep.  (x.  s.)  Exch.  73.     There  is  not  a  word  in  this  head 
ing  as  to  the  legalising  or  allowing  of  nuisances.     The  first  of  the 
following  clauses,  section   86,  allows  the  companies  to  be  carriVr? 
on  their  own  line,  and  limits  the  charges  they  may   make.     rJ     . 
"company"  wanted  no  law  to  enable  them  to  use  a  locomotive,  ai  v 
more  than  it  did  to  use  "other  moving  power  and  carriages  ; 
waggons,"   except  to  avoid    the  objection  of    ultra  vires.     A   m 
may  use  a  locomotive  on  his  soil  and  freehold,  and  so  may  a  cm 
poration.     They  do  want  —  that  is  to  say,  unless  given,  they  do  net 
possess  —  the  power  to  use  it  so  as  to  be  a  nuisance  to  their  neigh- 
bours.     But   if   this  were   intended  to  be  given,  where    are  the 
words  ?     The  wrords  are  sufficient  if  meant  to  give  vires  ultra  those 
of  a  company    to  make   a    railway,   but    insufficient   if    meant   to 


SECT.  III. — WHERE    ADEEMED    OR    ABRIDGED    BY    STATUTE.       6_!9 
No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 

•authorise  the  doing  of  damage.  Besides,  the  use  of  other  moving 
power,  and  of  carriages  and  waggons,  is  authorised.  In  what  sense  '. 
That  a  nuisance  may  he  committed  by  their  use  without  remedy  \ 
Impossible,  for  it  was  never  contemplated  they  would  be  a  nuisance. 
Section  87  clearly  also  gives  power  of  contracting  with  other 
companies,  and  has  no  thought  of  authorising  nuisances.  So  sec- 
tions 88  and  89,  9i)  and  91.  Section  92  gives  other  companies  and 
persons  a  right  to  use  the  railway  with  engines  and  carriages 
"properly  constructed  as  by  this  and  the  special  Act  directed." 
The  object  of  this  was  to  define  the  rights  of  the  public  over  the 
line  as  against  the  company,  not  to  authorise  nuisances.  All  these 
sections,  down  to  and  including  section  113,  have  the  same  object, 
— -namely,  regulating  the  use  of  the  railway  by  the  company  and 
others. 

But  it  is  said  that  section  114  shows  that  the  interests  of  others 
were  in  view  of  the  legislature,  and  that  they  made  thereby  what 
they  thought  was  sufficient  provision  for  that  object.  The  argu- 
ment is,  with  all  submission,  bad.  They  provided  for  this  matter 
certainly.  They  said,  "  We  will  not  let  it  be  discussed  whether 
this  is  a  nuisance."  Did  they,  therefore,  say,  nothing  else  shall  he, 
or,  if  it  is,  it  shall  be  remediless  ?     Certainly  not. 

Further,  the  statutes,  The  Lands  and  Railways  Clauses  Acts, 
themselves  recite  that  such  clauses  as  are  contained  in  them 
usually  appear  in  Acts  of  Parliament  authorising  the  taking  of  land 
and  the  construction  of  railways,  and  that  it  is  desirable  to  avoid 
the  necessity  of  repeating  them.  They  ought  to  have,  therefore, 
no  greater  or  other  effect  in  the  general  and  public  Acts  than  they 
had  in  the  particular  and  private.  Now,  it  is  not  supposable  that  in 
a  private  Act  for  a  particular  company  an  anomaly  so  great  was  to 
be  introduced  as  that  an  actionable  nuisance  might  be  committed 
with  no  common-law  remedy,  and  for  the  benefit  of  the  company, 
that  the  profits  might  be  larger  if  the  nuisance  was  left  without 
compensation.  If  it  is  said  that  compensation  is  given,  then  it  is 
most  surprising  that  in  such  private  Act  there  is  no  provision  for 
it  in  express  words.  And  the  same  remark  may  be  made  on  these 
general  Acts.  Why,  if  the  common-law  remedy  was  to  1c  taken 
away,  are  there  not  express  words  to  that  effect  ?  Why,  if  there 
is  to  be  a  remedy  by  compensation,  are  there  not  express  words  to 
that  effect?  Why,  if  there  is  to  lie  no  action  and  no  compensation, 
is  so  gross  and  anomalous  an  injustice  inflicted  when  such  pains 


630  ACTION  (right  of). 


No.  9.  —  Hammersmith  Kailway  Co.  v.  Brand. 


are  taken  to  give  compensation  for  the  slightest  injury  occasioned 
by  the  very  fabric  of  the  railway  ?  It  seems  to  me  impossible 
that  it  can  have  been  intended  that  this  damage  can  be  done 
without  any  compensation. 

One  reason  only  for  such  a  state  of  things  is  given.  It  is  said 
that  the  railway  and  the  working  of  it  are  for  the  public  benefit, 
and  therefore  the  damage  must  be  done,  and  be  uncompensated. 
Admitting  that  the  damage  must  be  done  for  the  public  benefit, 
that  is  no  reason  why  it  should  be  uncompensated.  It  is  to  be 
remembered  that  that  compensation  comes  from  the  public,  which 
gets  the  benefit.  It  comes  directly  from  those  who  do  the  dam- 
age, but  ultimately  from  the  public  in  the  fares  they  pay.  If  the 
fares  will  not  pay  for  this  damage  and  a  fair  profit  on  the  com- 
pany's capital,  the  speculation  is  a  losing  one,  as  all  the  gain  does 
not  pay  all  the  loss  and  leave  a  fair  profit.  Either,  therefore,  the 
railway  ought  not  to  be  made,  or  the  damage  may  well  be  paid 
for.  But,  further,  though  if  it  were  the  law  and  practice  to  do 
individuals  a  damage  for  the  benefit  of  the  public  without  compen- 
sation, no  one  in  particular  could  complain  when  it  happened  to 
him,  as  every  one  would  know  that  he  held  his  property  subject 
to  being  deprived  of  it  or  having  it  injured  when  it  suited  the 
public  ;  still,  such  a  law  and  practice  would  be  highly  inconvenient 
and  mischievous.  It  is,  however,  idle  to  discuss  such  a  question, 
as  the  legislature  has  acted  under  no  such  considerations.  For  if 
the  public  benefit  is  a  good  reason  for  damaging  a  man's  property 
without  compensation,  so  would  it  be  for  taking  it  without  com- 
pensation. The  legislature  has  made  the  most  careful  and  minute 
provisions  for  the  payment  of  compensation  for  everything  taken, 
and,  indeed,  for  everything  injuriously  affected.  And  it  is  absurd 
to  suppose  that  it  was  intended  that  if  a  house  was  damaged  to 
the  extent  of  £1  a  year  by  its  light  and  air  being  diminished,  com- 
pensation should  be  given,  and  that  it  should  not  be  given  where 
the  damage  was  ten  times  as  great,  but  was  caused  by  the  noise 
and  vibration  of  the  trains.  Surely,  when  a  reasonable  meaning 
can  be  given  to  the  clauses  relied  on,  it  should  be  adopted  rather 
than  one  so  unreasonable. 

It  is  said  that  a  man  might  dedicate  land  as  a  highway,  and 
no  action  would  lie  for  the  nuisance  occasioned  by  its  user.  In 
addition  to  the  other  answers  given  to  this,  I  may  add,  that  the 
ordinary  use  of  a  highway  is  not  a  nuisance  affecting  either  the 


SECT.  III.  —  WHERE    ADEEMED   OR   ABRIDGED   BY   STATUTE.       631 
No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 

building  or  its  occupants  to  such  an  extent  and  in  such  a  way  ;i- 
to  be  actionable.  But  if  any  one  continually  used  the  highway 
with  a  very  heavy  vehicle,  so  as  to  cause  such  a  vibration  as  is 
experienced  in  this  case,  I  apprehend  an  action  would  lie  against 
him. 

If  there  is  to  be  a  remedy,  and  it  is  to  be  by  compensation  and 
not  by  action,  how  is  the  compensation  to  be  calculated  "'.  The 
line  may  not  be  used;  its  traffic  may  double;  branch  lines  may  be 
made.  Further,  it  is  not  contended  by  those  who  say  that  the 
common-law  remedy  is  gone,  that  there  is  an  unlimited  right  to 
damage,  but  only  a  right  to  do  reasonable  mischief,  or  a  reasonable 
right  to  do  mischief.  That  is  to  say,  if  by  going  a  little  slower,  or 
being  at  a  little  more  expense,  or  some  other  inconvenience,  mis- 
chief can  be  avoided,  it  must  be.  But  on  what  principle  is  this  to 
be  settled?  Ten  trains  a  day  at  twenty  miles  an  hour  might  be  no 
nuisance ;  this  might  accommodate  the  public  and  pay  a  dividend. 
But  fifty  trains  a  day  at  thirty  miles  an  hour  might  be  a  grievous 
nuisance,  though  much  better  for  the  public  and  the  company. 
Where  is  the  line  to  be  drawn  ?  Take  the  case  of  the  plaintiff 
in  Vavghaii  v.  The  Taff  Vale  Railway  Company,  supra.  There 
the  defendants  declared  that  they  went  as  slowly  as  they  could,  and 
with  every  contrivance  for  safety.  But  they  might  have  had  one 
servant,  or  ten,  or  a  thousand  at  the  spot  in  question  to  prevent 
the  grass  catching  fire  and  burning  the  plaintiff's  wood.  This 
would  have  cost  them  money ;  and  it  was  cheaper  to  burn  the 
wood,  or,  at  all  events,  on  a  calculation  of  chances,  better  to  risk 
doing  so,  than  to  have  a  sufficient  number  of  servants.  But  how 
is  compensation  to  be  calculated  for  such  a  matter  ?  Moreover, 
if  these  plaintiffs  are  entitled  to  compensation,  so  is  the  owner  of 
every  piece  of  land  near  the  railway.  For  though  there  may  be 
no  house  on  it  now,  it  is  possible  there  would  have  been  ;  but 
that  is  now  prevented  by  the  railway,  —  at  least  to  the  same 
advantage  as  before.  Therefore  such  land  is  injuriously  affected, 
if  this  is. 

In  the  result,  then,  the  right  of  action  is  not  taken  away  in 
terms;  the  right  to  compensation  is  not  given  in  terms.  The  prin- 
ciple on  which  compensation  should  be  given  would  be  most  diffi- 
cult to  settle.  Though  given,  the  companies  would  still  be  liable 
to  actions  for  excess,  which  it  would  be  difficult  to  define,  leaving 
scope  for  continual   litigation.     It   is  impossible   that  all  remedy 


632  ACTION   (right  of). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


and  redress  are  taken  away  ;  and  the  only  clauses  supposed  to 
indicate  this  are  shown  to  have  another  and  different  object  and 
effect. 

For  these  reasons  I  think  the  right  of  action  not  taken  away, 
and  the  remedy  by  compensation  not  given,  and  that  the  two 
cases  I  have  referred  to  were  erroneously  decided.  I  may 
observe,  however,  as  to  Rex  v.  Pease,  supra,  that  it  was  not  one 
of  private  wrong,  but  of  public  nuisance.  In  the  later  case,  if 
what  was  done  was  for  the  public  benefit,  the  public  is  at  once  the 
gainer  and  loser,  and  the  one  may  in  some  sense  be  set  against 
the  other;  and  so  it  might  have  been  that  without  an  Act  of 
Parliament  the  matter  complained  of  there  would  have  been  no 
public  nuisance.  But  the  present  is  not  the  case  of  a  public  but 
of  a  private  nuisance,  where  the  loser  and  gainer  are  not  the  same 
to  the  same  extent.  In  that  case,  also,  the  point  I  present  to  your 
Lordships  was  not  mooted.  It  was  nut  noticed  that  the  clause 
was  necessary  to  avoid  the  objection  of  ultra  circs.  Nor  was  it 
used  by  the  counsel  for  the  plaintiffs  in  error  before  your  Lord- 
ships, because,  though  it  would  relieve  them  from  the  present 
claim,  it  would  do  so  at  the  expense  of  leaving  them  subject  to 
actions  from  time  to  time. 

It  is  said  that  Ilex  v.  Pease,  supra,  has  been  so  long  decided, 
and  so  many  railways  have  been  made  on  the  supposition  that  it 
was  law,  that  it  must  be  set  right,  if  wrong,  by  legislation  only. 
That  it  gives  rise  to  great  difficulties,  I  think  1  have  shown.  I 
believe  it  has  not  been  acted  on  ;  compensation  under  the  compen- 
sation clauses  has  not  been  given  as  it  ought  to  have  been  if  Pa 
v.  Pease,  supra,  is  law.  This  is  the  first  time  the  question  comes 
before  your  Lordships,  and  it  cannot  be  said  that  railway  com- 
panies have  allowed  such  compensation  to  be  awarded  against 
them  without  appeal.  So,  also,  juries  in  actions  have  found 
negligence  in  railway  companies  as  they  ought  not  to  have  done 
if  that  case  is  not  law,  and  compensation  ought  to  have  been 
given.  As  to  railway  traffic  being  stopped  by  injunction,  I  appre- 
hend injunctions  would  not  be  granted  in  such  cases. 

I  have  deemed  it  my  duty  to  bring  these  cases  before  your 
Lordships.  If  your  Lordships  hold  them  to  have  been  rightly  de- 
cided, or  think  they  are  so  far-settled  law  that  they  must  be  acted 
on,  then  it  seems  to  me  they  show  that  the  judgment  below  was 
light,  and  that  your  Lordships'  question  should  be  answered  in  the 


SECT.  III. —WHERE   ADEEMED   OR    ABRIDGED    BY    STATUTE.       633 

No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 

affirmative.  Because,  for  the  reasons  T  have  given,  I  am  sure  the 
legislature  did  not  mean  to  leave  persons  whose  property  will  be 
injured,  as  in  this  case,  without  remedy  by  action  or  claim  for  com- 
pensation ;  and  I  think  it  right  to  hold  any  words  that  are  capable 
of  it  to  mean  to  give  a  remedy  by  implication.  Of  course  we  must 
not  put  a  meaning  on  words  which  they  cannot  bear  to  remedy  an 
injustice,  however  gross.  But  I  think  the  words  "injuriously 
affected  by  the  construction  thereof "  and  "  full  compensation  for 
all  damage  sustained  by  reason  of  the  exercise  as  regards  such 
land  of  the  powers,"  &c,  may,  and  where  it  is  established  there  is 
no  right  of  action  must,  have  the  effect  of  giving  compensation  for 
the  damage.  For,  according  to  the  case  of  Vaughan  v.  The  Taff 
Vale  Railway  Company,  supra,  immediately  on  the  construction  of 
the  railway,  and  "by  the  construction  thereof,"  a  right  accrued  to 
do  this  damage.  How,  then,  can  it  be  said  that  the  lands  are  not. 
injuriously  affected  "  by  the  construction  thereof "  if  they  thereby 
became  subject  to  this  ?  They  immediately  come  under  a  servi- 
tude, as  Mr.  Mellish  put  it  in  the  Court  below.  Suppose  it  had 
been  enacted  expressly  that  on  the  construction  of  the  railway 
there  should  be  a  right  to  use  it  so  as  to  create  a  nuisance  action- 
able at  common  law,  would  not  that  have  been  matter  for  com- 
pensation as  much  as  if  it  had  been  enacted  that  the  owner  should 
make  a  grant  of  such  a  servitude?  But  it  makes  no  difference 
whether  it  is  expressly  or  otherwise  enacted,  if  it  is  enacted  as 
Vaughan  v.  The  Taff  Vale  Railway  Company,  supra,  shows  it  is. 

As  to  the  argument  that  the  premises  are  none  the  worse,  but 
only  the  occupiers,  it  is  enough  to  say  that  the  same  thing  might 
be  said  in  answer  to  a  claim  for  compensation  for  diminished  light. 
It  is  to  be  observed  that  the  word  is  not  "in,"  or  "during,"  but 
"by"  the  construction  of  the  railway.  Besides,  this  is  a  damage 
sustained  by  occupiers  by  an  exercise,  as  regards  these  lands,  of 
the  powers  of  the  Act. 

The  opinions  I  have  expressed  here  I  entertained  and  expressed 
in  the  Court  below.  But  feeling  there  that  I  was  bound  by  the 
case  oi. Vaughan  v.  The  Taff  Vale  Railway  Company,  supra,  I 
thought  the  then  plaintiffs  entitled  to  judgment  in  their  favour. 
►Should  your  Lordships  hold  those  cases  to  have  been  well  decided, 
or  too  settled  to  be  overruled,  then,  for  the  reasons  I  have  given,  I 
think  the  then  plaintiffs  entitled  to  judgment  in  their  favour, 
otherwise   not.      I   have  necessarily  repeated   what  I   said    there, 


634  ACTION    (RIGHT   OF). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


because  I  am  unable  to  offer  anything  better  to  your  Lordships, 
and  because  I  desired  to  save  your  Lordships  the  trouble  of  refer- 
ring to  what  I  then  said,  had  your  Lordships  been  minded  so 
far  to  honour  me. 

Blackburn,  J.  I  have  come  to  the  conclusion  that  the  plaintiffs 
below  have  no  right  to  compensation  for  the  vibration  mentioned 
in  the  special  case.  I  need  not  say  that,  finding  that  I  stand 
alone  amongst  the  Judges  consulted  by  your  Lordships,  I  give 
this  opinion  with  diffidence.     My  reasons  are  as  follows :  — 

I  think  it  is  agreed  on  all  hands  that  if  a  person,  not  authorised 
by  Act  of  Parliament  so  to  do,  erected  a  railway  or  any  other 
private  road  on  his  own  land,  and  then  worked  it  by  running  loco- 
motives and  trains  or  any  other  species  of  carriages  upon  it,  so 
that  the  vibration  and  noise  was  to  such  an  extent  as  really  to  be 
annoying  to  a  neighbour,  that  injury  would  be  a  nuisance,  and 
that  neighbour  would  have  a  fresh  cause  of  action  against  the 
maintainer  of  the  way  every  time  the  way  was  so  worked  as  to 
give  rise  to  the  nuisance;  and  he  might,  I  apprehend,  obtain 
an  injunction  to  prevent  the  continuance  of  the  nuisance.  lint 
if,  instead  of  making  and  maintaining  a  private  way  of  his  own, 
the  owner  of  the  land  dedicated  it  as  a  public  highway,  and  the 
public  brought  traffic  on  it  to  such  an  extent  that  the  noise  and 
vibration  seriously  affected  the  neighbours,  I  apprehend  they  would 
be  without  remedy.  The  common  law  would  leave  them  suffering 
a  private  hardship  for  the  public  benefit. 

This  distinction  may  have  some  bearing  on  the  construction  of 
the  statutes -(8  Vict.  c.  18,  and  8  Vict.  c.  20),  on  the  true  meaning 
of  which  I  think  the  present  case  depends. 

And  I  think  that  it  is  agreed  on  all  hands  that  if  the  legislature 
authorise  the  doing  of  an  act  (which,  if  unauthorized,  would  be  a. 
wrong  and  a  cause  of  action)  no  action  can  be  maintained  for  that 
act,  on  the  plain  ground  that  no  court  can  treat  that  as  a  wrong 
which  the  legislature  has  authorized,  and  consequently  the  person 
who  has  sustained  a  loss  by  the  doing  of  that  act  is  without 
remedy,  unless  in  so  far  as  the  legislature  have  thought  it  proper 
to  provide  for  compensation  to  him.  He  is,  in  fact,  in  the  same 
position  as  the  person  supposed  to  have  suffered  from  the  noisy 
traffic  on  a  new  highway  is  at  common  law,  and  subject  to  the 
same  hardship.     He  suffers  a  private  loss  for  the  public  benefit. 

Now,  the  legislature  have  thought  fit  to  authorize  the  defendants 


SECT.  III.  —  WHERE   ADEEMED    OR    ABRIDGED    BY   STATUTE.       G35 

No.  9.    -  Hammersmith  Railway  Co.  v.  Brand. 

to  make  a  railway,  ami  by  8  Vict.  c.  20,  §  86,  "  to  use  and  employ 

locomotive  engines  and  other  moving  power,  and  carriages  and 
waggons  to  be  drawn  or  propelled  thereby."  And  the  first  ques- 
tion is,  whether  this  is  such  a  legislative  authorization  of  the  use 
of  such  power  as  to  render  all  such  consequences  as  inevitably 
attend  it  no  longer  wrongful. 

If  this  were  a  new  matter,  I  should  think  there  was  a  great  dea] 
in  what  is  thrown  out  by  Baron  BRAMWELL  in  his  judgment  in  the 
Exchequer  Chamber  in  this  case;  but  the  contrary  was  held  in 
Rex  v.  Pease,  supra,  so  long  ago  as  1832,  and  acted  on  in  Vaughan 
v.  Tlie  Tuff  Voh1  Railvjay  Company,  supra.  And  it'  your  Lord- 
ships were  to  reverse  those  decisions,  the  consequence  would  follow 
that  any  owner  of  a  house  or  Held  so  adjacent  to  a  railway  that 
the  inevitable  disturbance  from  the  working  of  the  line  amounted 
to  a  nuisance  might  (at  least  where  the  railway  has  not  been 
opened  for  twenty  years)  stop  the  working  of  the  line.  So  large 
an  amount  has  been  invested  in  the  belief  that  the  trains  might 
be  run,  even  though  some  mischief  to  others  was  inevitable, 
that  I  think  your  Lordships  will  hold  that,  even  if  the  principle 
of  Bex  v.  Pease,  sii>>i'i',  was  originally  an  error,  it  has  long  become 
•communis  error,  and  ought  to  be  held  to  have  made  the  law. 

I  come,  therefore,  to  the  conclusion  that  but  for  the  statutes  the 
plaintiff's  would  have  had  a  right  of  action  for  the  vibration  arising 
from  the  .working  of  the  defendants'  line,  and  that  the  statutes 
have  taken  away  that  right  of  action.  The  question  then  arises, 
whether  the  legislature  have  given  the  plaintiffs  any  com- 
pensation;  and  that' must  be  a  question  depending  on  the 
construction  of  the  statutes. 

It  has  been  argued  with  great  force  that  it  is  so  unjust  to  take  away 
private  rights  without  compensation  that  it  should  be  supposed  that 
the  legislature  at  least  wished  to  give  compensation  in  every  case 
where  there  was  a  private  injury.  But  I  think  it  is  clear  that  the 
legislature  have  not  adopted  this  principle.  In  such  a  ease  as  that 
of  The  London  a  ml  North-western  Railway  Company  v.  Bradley,  3 
Mac.  &  G.  336,  where  the  beer  in  vaults  adjoining  to  the  railway 
turned  sour  in  consequence  of  the  vibration,  the  owner  of  the  vaults 
may  or  may  not  have  had  a  right  to  compensation  for  the  injury  to 
his  vaults;  but  the  owner  of  the  beer,  if  a  different  person  from 
the  occupier  of  the  vaults,  could  have  none,  for  the  right  to  com- 
pensation   is    strictly    confined    to    interest    in     lands    injuriously 


636  ACTION    (RIGHT    OF). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


affected.  See  The  Caledonian  Railway  Company  v.  Ogilvy,  2  Macq. 
So.  App.  229;  and  Rickets  v.  The  Metropolitan  Railway  Company, 
L.  R.  2  H.  L.  175  ;  36  Law  J.  Q.  B.  205. 

The  reason  why  the  legislature  so  narrowed  the  claim  to  com- 
pensation is  probably  that  stated  by  Lord  CltANWORTH,  in  Rickets 
v.  The  Metropolitan  Railway  Company,  supra,  "  that  any  other 
construction  of  the  clause  would  open  the  door  to  claims  of  so 
wide  and  indefinite  a  nature."  But  whatever  be  the  reason,  I 
think  it  clear  that  no  compensation  is  given  to  those  whose  inter- 
est in  goods  or  whose  personal  interests  are  injuriously  a  fleeted, 
except  where  it  can  in  some  way  be  annexed  to  the  compensation 
for  an  injury  to  land. 

No  doubt  it  is  often  very  difficult  to  say  whether  an  interest  in 
land  is  or  is  not  injuriously  affected.  In  the  present  case,  however, 
I  assent  to  the  argument  so  neatly  expressed  in  the  reasons  in  the 
appellants'  case,  that  the  plaintiffs'  house  has  "  become  subject  to 
a  perpetual  servitude,"  and  so  their  interest  in  it  is  injuriously 
affected. 

In  my  mind,  therefore,  the  question  is  narrowed  to  this :  Do  the 
compensation  clauses  in  the  statutes  extend  to  the  consequences 
of  working  the  railway,  and  using  the  statutable  powers  for  that 
purpose  ?  Or  are  they  confined  to  the  making  and  maintaining  of 
the  railway  and  the  works,  and  the  using  the  statutable  powers 
for  that  purpose  ? 

I  can  see  many  plausible  reasons  why  the  legislature  might 
think  fit  to  adopt  the  narrower  construction.  There  is  the  analogy 
to  the  hardship  which,  for  the  public  good,  is  imposed  by  the 
common  law  on  the  owner  of  a  quiet  villa  if  his  neighbour 
dedicates  the  land  close  under  his  windows  to  the  public  as  a 
highway,  it  may  be,  leading  to  Smithfield  Market.  Or  they 
might  have  thought,  as  Lord  Cranworth  expresses  it,  that  claims 
in  respect  of  such  damage  would  be  of  "a  very  wide  and  indefinite 
character."  But  I  must  own  that  on  reading  the  statutes  I  do  not 
think  that  the  legislature  deliberately  excluded  such  claims.  I 
think  they  were  not  in  the  contemplation  of  those  who  framed 
the  statutes  at  all ;  and  that  if  there  are  words  used  sufficiently 
large  to  embrace  such  a  case,  it  is  by  an  unintended  accident.  My 
opinion  is  based  on  what  may  be  thought  the  narrow  ground,  that 
no  right  to  compensation  exists  unless  given  by  the  legislature, 
and  that  1  can  find  no  sufficient  expression  of  an  intention  on   the 


SECT.  III.  —  WHERE    ADEEMED   OR    ABRIDGED    BY    STATUTE.       637 

No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 

part  of  the  legislature  to  give  compensation  for  the  consequences 
of  exercising'  the  powers  given  by  the  8  Vict.  c.  20,  §86. 

I  am  relieved  from  the  necessity  of  going  through  the  different 
sections  of  the  Acts,  because  Baron  Channell  in  his  judgment  in 
the  Court  of  Exchequer  Chamber,  L.  K.,  2  Q.  B.  2o5,  lias  said  every- 
thing I  could  wish  to  say  on  that  head.  I  will  only  add  in 
reference  to  the  argument  used  in  the  Exchequer  Chamber  by  Ah. 
Justice  Montague  Smith,  derived  from  the  general  words  "they 
may  do  all  other  acts  necessary  for  making,  maintaining,  altering 
or  repairing,  and  using  the  railway,"  which  occur  in  the  middle  of 
the  16th  section  of  8  Viet.  c.  20,  that  in -Jones  v.  The  Fediniog 
Railway  Company,  supra,  the  Court  of  Queen's  Bench  (then  con- 
sisting only  of  my  brother  Lush  and  myself)  thought  that  similar 
general  words  in  a  Railway  Act,  which  did  not  contain  any  express 
authority  to  use  locomotive  power,  left  the  company  at  liberty,  no 
doubt,  to  use  locomotives,  but  on  the  common-law  terms  that  they 
must  keep  in  the  fire  at  their  own  peril.  So  far  as  it  goes,  this 
confirms  the  reasoning  of  Baron  Channell  on  this  part  of  the  16th 
section. 

I  regret  that  I  am  obliged  to  come  to  such  an  unsatisfactory 
termination  ;  but  I  think  the  whole  depends  on  the  construction 
of  enactments  not  sufficiently  considered  when  penned.  Opinions 
will  differ  on  such  a  point,  and  it  is  not  capable  of  much  illus- 
tration from  argument.  I  can  only  repeat  that  in  my  opinion  the 
onus  lies  on  the  plaintiffs  below  to  show  that  the  legislature  have 
given  compensation;  and  I  cannot  find  in  the  statutes  any  language 
which,  in  my  mind,  expresses  an  intention  to  give  compensation 
for  such  an  injury. 

On  the  13th  July,  I860,  the  judgment  of  the  House  was  pro- 
nounced, reversing  the  judgment  of  the  Exchequer  Chamber,  and 
affirming  the  judgment  of  the  Queen's  Bench  in  favour  of  the  defend- 
ants.    The  learned  Lords  present  gave  their  reasons  as  follows  :  — 

Lord  Chelmsford  :  — 

My  Lords,  this  is  a  proceeding  in  error  upon  a  judgment  of  the 
Court  of  Exchequer  Chamber,  reversing  a  judgment  of  the  Court  of 
Queen's  Bench,  in  favour  of  the  plaintiffs  in" error,  upon  a  special 
case. 

The  question  raised  for  the  opinion  of  the  Court  below  was, 
whether  the  plaintiffs  in  the  action,  who  are  owners  of  a  house 


633  action  (right  of). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


adjacent  to  the  Hammersmith  and  City  Railway,  were  entitled  to 
compensation  from  the  railway  company  for  injury  to  their  house 
from  the  vibration  caused  by  the  passage  of  trains  over  the  line  in 
the  ordinary  use  of  the  railway  without  negligence,  whereby  the 
house  was  depreciated  in  value  to  the  extent,  as  found  by  a  jury, 
of  £272. 

It  is  necessary,  in  the  outset  of  the  consideration  of  this  case,  to 
point  out  that  the  question  is  confined  to  the  injury  arising  from 
vibration,  because  Mr.  Justice  Lush,  in  the  Court  of  Queen's  Bench, 
stated  that  the  question  was  whether  the  owners  of  the  house  were 
entitled  to  compensation  "  for  vibration,  noise,  and  smoke;"  and 
Sir  William  Erle,  who  heard  the  whole  of  the  argument  in  the 
Exchequer  Chamber,  but  retired  from  the  Bench  before  the  judg- 
ment was  delivered  in  that  Court  (whose  opinion,  however,  is  added 
to  the  report  of  the  case  in  the  Court  below,  L.  R.,  2  Q.  B.  24G ;  36 
Law  J.  Q;  B.  150,  assumed  that  the  compensation  was  given  for 
noise  and  smoke  as  well  as  for  vibration,  and  stated  that  "  there 
was  nothing  to  indicate  what  was  the  degree  of  noise,  smoke,  or 
vibration,  or  what  was  the  amount  assessed  for  either  of  these 
causes  separately,  and  that  there  was  no  evidence  of  any  damage  to 
the  realty,  either  in  structure  or  otherwise,  from  these  causes,  so> 
that  the  compensation  must  be  taken  to  have  been  given  for  the 
supposed  discomfort  of  the  inmates  of  the  house."  The  special  caser 
however,  expressly  states,  with  reference  to  this  head. of  claim,  that 
the  jury  assessed  the  amount  of  compensation  "  for  vibration  from 
the  use  of  the  railway  after  construction,"  at  £272. 

There  has  been  great  difference  of  opinion  amongst  the  Judges 
in  the  Courts  below  upon  this  case,  and  those  whose  assistance  your 
Lordships  had  are  not  unanimous  in  their  answers  to  the  question 
proposed  to  them.  Tt  must  therefore  be  regarded  as  one  of  nicety 
and  difficulty. 

It  must  be  borne  in  mind  that  this  is  not  a  case  in  which  it  was; 
possible  to  claim  compensation  before  the  construction  of  the  rail- 
way, nor,  indeed,  till  after  its  working  had  commenced,  because  till 
then  it  could  not  be  known  whether  there  would  be  any  vibration? 
injurious  to  the  house  occasioned  by  the  passing  of  the  trains.  The 
simple  question,  therefore,  is  whether  the  legislature  has  provided 
compensation  for  any  damage  to  land  or  houses  not  arising  from? 
negligence,  but  the  inevitable  consequence  of  the  proper  and 
ordinary  use  of  the  railway. 


SECT.  III.  —  WHERE    ADEEMED    Oil   ABRIDGED    BY    STATUTE.       639 
No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 

As  an  introduction  to  this  question,  I  must  repeat  what  I  said  in 
Ricket  v.  The  Directors,  dr.,  of  the  Metropolitan  Railway  Company, 
supra:  "The  criterion  of  a  party's  right  to  damages  under  the 
clauses  of  the  Kail  way  Companies'  Acts  is  correctly  stated  by 
Lord  Campbell  in  Penny  v.  The  Southeastern  Railway  Company, 
7  EL  &  B.  660  ;  s.  c.  26  Law  J.  Q.  B.  25,  that  unless  the  par- 
ticular injury  would  have  been  actionable  before  the  company  had 
acquired  their  statutory  powers,  it  is  not  an  injury  for  which 
compensation  can  be  claimed."  To  which  I  must  add,  as  I  added 
there,  the  observation  of  my  late  noble  and  learned  friend  Lord 
CRANWORTH,  in  the  case  of  The  Caledonian  Com pany  v.  Ogilvy, 
2  Alacq.  Sc.  App.  Cas.  229.  "  That  it  does  not  follow  that  a  party 
would  have  a  right  to  compensation  in  some  cases  in  which,  if  the 
Act  of  Parliament  had  not  passed,  there  might  have  been,  not 
only  an  indictment,  but  a  right  of  action." 

Assuming  that  before  the  passing  of  their  Act  the  company  would 
have  been  liable  to  an  action  for  the  injury  caused  to  the  plaintiffs' 
house,  it  is  necessary  for  the  plaintiffs  in  the  first  place  to  establish 
that  the  company's  Act  has  taken  away  the  remedy  by  action  in 
order  to  open  the  way  to  their  claim  to  compensation. 

If  the  cases  of  Rex  v.  Tease,  supra,  and  Vaughan  v.  The  Toff 
Vale  Railway  Company,  supra,  were  rightly  decided,  this  question 
has  been  determined.  It  was  established  by  those  cases,  "  that 
when  the  legislature  has  sanctioned  the  use  of  a  locomotive  engine 
there  is  no  liability  for  any  injury  caused  by  using  it  so  long  as 
every  precaution  is  taken  consistent  with  its  use."  Mr.  Baron 
BRAMWELL,  in  his  answer  to  the  question  put  by  your  Lordships  to 
the  Judges,  adverting  to  the  above  case,  said,  "With  great  respect., 
I  think  those  cases  clearly  wrong,  and  that  they  have  proceeded  on 
an  inadvertent  misapprehension  of  the  object  and  effect  of  the 
clauses  in  question."  And  he  then  reasoned  from  the  Act  of  the 
company  in  this  manner  (p.  628  supra):  "The  86th  section  of 
the  8  &  9  Vict.  c.  20,  which  gives  the  company  the  right  to  be  car- 
riers on  their  own  line,  is  preceded  by  a  heading,  '  With  respect  to 
the  carrying  of  passengers  and  goods  upon  the  railway,  and  the  tolls 
to  be  taken  thereon.'  There  is  not  a  word,"  said  the  learned  Baron, 
"  in  this  heading  as  to  the  legalising  or  allowing  of  nuisances.  The 
company  wanted  no  power  to  enable  them  to  use  a  locomotive.  A 
man  may  use  a  locomotive  on  his  soil  and  freehold,  and  so  may  a 
corporation.     They  do  not  possess  the  power  to  use  it  so  as  to  be  a 


640  ACTION   (right  of). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


nuisance  to  their  neighbours.  If  this  were  intended  to  be  given, 
where  are  the  words?  The  words  are  sufficient  if  meant  to  give 
vires  ultra  those  of  a  company  to  make  a  railway,  but  insufficient 
it   meant  to  authorize  the  doing  of  damage." 

With  great  respect  to  the  learned  Baron,  we  do  not  expect  to  find 
words  in  an  Act  of  Parliament  expressly  authorizing  an  individual 
or  a  company  to  commit  a  nuisance  or  to  do  damage  to  a  neighbour. 
The  8Gth  section  gives  power  to  the  company  to  use  and  employ 
locomotive  engines,  and  if  such  locomotives  cannot  possibly  be  used 
without  occasioning  vibration  and  consequent  injury  to  neighbour- 
ing houses,  upon  the  principle  of  law  that  cuicunque  aliquis  quid 
concedit  concede  re  videtur  et  id  sine  quo  res  ij>*a  esse  non  potuit,  it 
must  be  taken  that  power  is  given  to  cause  that  vibration,  without 
liability  to  an  action.  The  right  given  to  use  the  locomotive  would 
otherwise  be  nugatory,  as  each  time  a  train  passed  upon  the  line 
and  shook  the  houses  in  the  neighbourhood,  actions  might  be  brought 
by  their  owners,  which  would  soon  put  a  stop  to  the  use  of  the  rail- 
way. I  therefore  think,  notwithstanding  the  respect  to  which  every 
opinion  of  Mr.  Baron  Bramwell  is  entitled,  that  the  case  of  Bex  v. 
Pease,  supra,  and  Vaughan  v.  The  Tuff  Vale  Railway  Company, 
supra,  were  rightly  decided. 

The  plaintiffs'  remedy  by  action  being  taken  away,  the  question 
remains  whether  they  are  entitled  to  receive  compensation  from  the 
company  for  the  injury  done  to  their  house,  a  question  which  must 
be  decided  entirely  by  the  provisions  of  the  Acts  of  Parliament  re- 
lating to  the  subject.  It  must  be  taken  as  an  established  fact,  that 
by  the  use  of  the  railway  the  plaintiffs'  house  has  been  depreciated 
in  value  to  the  extent  of  £272,  and  as  they  cannot  recover  the 
damage  they  have  thus  sustained  by  action,  one  naturally  feels  a 
wish  to  find  that  the  legislature  has  not  left  them  remediless,  but 
has  provided  for  them  the  means  of  redress  in  the  shape  of  com- 
pensation, to  be  paid  by  tic  company  as  the.  price  of  the  right  given 
to  them  to  injure  the  plaintiffs'  property.  It  is  with  this  disposi- 
tion that  I  entered  upon  an  examination  of  the  clauses  of  the  Acts 
to  which  your  Lordships'  attention  was  called  in  the  argument; 
and  I  may  say  that  it  was  with  regret  I  was  unable  to  find  any- 
thing in  them  upon  which,  in  my  opinion,  the  claim  to  the  com- 
pensation can  be  established.  It  is  not  that  the  legislature  has 
excluded  compensation  for  injury  arising  as  the  necessary  conse- 
quence of  using  the  railway,  but  that  it  has  not,  as  far  as  I  can 


SECT.  III.  —  WHERE    ADEEMED    OB    ABRIDGED    BY    STATUTE.       G41 
No.  9.  —  Hammersmith  Bailway  Co.  v.  Brand. 

discover,  given  any  right  to  claim  compensation  for  this  species  of 
injury. 

The  sections  of  The  Railways  Clauses  Act  which  appear  to  me  to 
be  alone  necessary  to  be  considered  are  the  6th  and  the  16th  sec- 
tions. I  do  not  think  that  the  sections  of  The  Lands  Clauses  Act 
which  were  referred  to  in  the  argument  are  applicable. 

The  sections  of  The  Railways  Clauses  Act  are,  as  your  Lordships 
know,  arranged  in  order  under  different  heads,  which  indicate  the 
general  object  of  the  provisions  immediately  following  ;  and  these 
may  be  usefully  referred  to  to  determine  the  sense  of  any  doubtful 
expression  in  a  section  ranged  under  a  particular  heading. 

The  heading  to  the  6th,  and  all  the  subsequent  sections  down  to 
the  30th,  and  including  of  course  the  16th,  is  "And  with  respect 
to  the  construction  of  the  railway  and  the  works  connected  there- 
with, be  it  enacted  as  follows."  Therefore,  all  the  sections  to  which 
the  heading  applies  must  be  taken  to  have  been  intended  by  the 
legislature  to  provide  for  matters  relating  to  "  the  construction  of 
the  railway  and  the  works  connected  therewith." 

The  6th  section  seems  more  closely  to  confine  its  provisions  to 
these  objects,  for  it  begins  by  enacting  that  "  in  exercising  the 
power  given  to  the  company  to  construct  the  railway,  and  to  take 
lands  for  that  purpose,  the  company  shall  be  subject  to  the  provis- 
ions and  restrictions  contained  in  this  Act  and  in  The  Lands  Clauses 
Consolidation  Act;"  and  then  it  goes  on  "and  the  company  shall 
make  to  the  owners  and  occupiers  of  and  all  other  persons  inter- 
ested in,  any  lands  taken  or  used  for  the  purposes  of  the  railway, 
or  injuriously  affected  by  the  construction  thereof,  full  compen- 
sation for  the  value  of  the  lands  so  taken  or  used,  and  for  all 
damage  sustained  by  such  owners,  occupiers,  and  other  parties,  by 
reason  of  the  exercise,  as  regards  such  lands,  of  the  powers  by 
this  or  the  special  Act,  or  any  Act  incorporated  therewith,  vested 
in  the  company." 

It  was  argued  for  the  plaintiffs  that  the  injury  occasioned  to  the 
house  from  the  vibration  caused  by  the  use  of  the  railway  came 
within -the  words  "injuriously  affected  by  the  construction  thereof," 
or,  at  all  events,  that  it  was  a  "damage  sustained  by  reason  of  the 
exercise  of  the  powers  vested  in  the  company." 

Now,  as  to  the  words  "  by  the  construction  thereof,"  it  seems  to 
me  that  "it  would  be  doing  violence  to  language  (even  without  the 
limitation  which  is  placed  upon  these  words  by  the  general  heading 

VOL.   I.  — 41 


642  ACTION  (right  of). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


to  the  6th  and  the  following  sections  and  the  context  of  the  section 
itself)  to  extend  them  to  any  injury  which  is  not  the  immediate 
consequence  of  the  construction  of  the  railway.  An  instance  of 
damage  of  this  sort  occurs  in  this  very  case,  for  the  jury  gave  the 
plaintiffs  compensation  to  the  amount  of  £836  for  obstruction  of 
light,  air,  and  doorway. 

To  argue  that,  as  the  injury  could  not  have  occurred  unless  the 
railway  had  been  previously  constructed,  therefore  it  was  caused 
"  by  the  construction  thereof,"  is  certainly  a  strong  example  of 
illogical  reasoning  of  post  hoc  ergo  propter  hoc,  and  would  extend  to 
every  accident  or  injury  occurring  upon  the  railway  after  its  con- 
struction, which,  of  course,  could  not  have  happened  if  it  had  not 
been  constructed. 

With  respect  to  the  subsequent  words  in  the  6th  section,  "  damage 
sustained  by  reason  of  the  exercise  of  the  powers  vested  in  the  com- 
pany," it  was  argued  that  they  embrace  the  claim  of  the  plaintiffs, 
because  the  powers  vested  in  the  company  are  not  merely  for  the 
construction  of  a  railway,  but  also  for  the  use  of  it  after  its  construc- 
tion, being  the  end  and  object  for  which  it  is  made.  But  again  we 
must  refer  to  the  heading  of  this  and  the  following  sections,  which 
limit  the  provisions  they  contain  "  to  the  construction  of  the  rail- 
way and  the  works  connected  therewith."  And  reading  the  words 
of  the  section  witli  reference  to  these  objects,  we  find  that  compen- 
sation is  to  be  made  to  the  owners,  &c,  of  lands  taken  or  used  for 
the  purposes  of  the  railway,  or  injuriously  affected  by  the  construc- 
tion thereof,  for  damage  sustained,  not  as  regards  such  lands,  but 
"  by  reason  of  the  exercise  as  regards  such  lands  of  the  powers 
vested  in  the  company."  Now,  the  powers  vested  in  the  company 
"  as  regards  such  lands  "  are  to  take  and  use  the  lands  for  the  pur- 
poses of  the  railway  ;  and  to  say  that  the  use  of  the  railway  after 
its  construction  is  one  of  the  powers  vested  in  the  company  in  re- 
gard to  the  lands,  conveys  to  my  mind  no  intelligible  meaning. 

The  6th  section  of  The  Eailways  Clauses  Act  being  inapplicable 
to  the  plaintiffs'  claim,  we  must  turn  to  the  16th  section,  to  see 
whether  it  affords  any  countenance  to  it.  The  16th  section,  as 
already  observed,  is  one  of  the  sections  ranged  under  the  heading 
which  immediately  precedes  the  6th  section.  As  the  words  "  using 
the  railway  "  are  found  in  it,  great  stress  is  laid  upon  it  in  favour 
of  the  plaintiffs'  claim  to  compensation.  Now,  it  must  be  observed 
that  this  section  begins  with  the  words  "  It  shall  be  lawful  for  the 


SECT.  III.  —  WHERE   ADEEMED   OR    ABRIDGED    BY    STATUTE.       64o 

No.  9.  —  Hammersmith  Railway  Co.  v.   Brand. 

company,  for  the  purpose  of  constructing  the  railway,  or  the  accom- 
modation works  connected  therewith,  hereinafter  mentioned,  to 
execute  any  of  the  following  works;"  and  then  follows  a  specifi- 
cation of  different  works  in  detail  empowered  to  be  done  for  the 
purposes  mentioned,  ending  with  a  general  power  to  do  "all  other 
acts  necessary  for  making,  maintaining,  altering  or  repairing,  and 
using  the  railway."  The  section  then  provides  that,  in  the  exer- 
cise of  the  powers  by  this  or  the  special  Act  granted,  the  company 
shall  do  as  little  damage  as  can  be,  and  shall  make  full  satisfaction 
to  all  parties  interested  "  for  all  damage  by  them  sustained  by  rea- 
son of  the  exercise  of  such  powers." 

The  counsel  for  the  respondents  argued  that  the  proviso  compre- 
hended every  description  of  damage  sustained  by  reason  of  the  exer- 
cise of  the  powers  vested  in  the  company  ;  that  power  is  given  to 
them  by  the  86th  section  of  the  Act,  to  use  and  employ  locomotive 
engines  upon  the  railway  ;  and  that  injury  to  the  plaintiffs'  house 
arose  from  the  use  of  such  locomotive  engines,  and  therefore  was 
sustained  by  reason  of  the  exercise  of  the  company's  powers. 

It  appears  to  me  that  this  argument  claims  for  the  proviso  in  the 
16th  section  a  wider  application  than  is  warranted  by  the  purview 
of  the  section.  The  powers  specifically  conferred  by  it  are  expressly 
referred  and  limited  to  "  the  purpose  of  constructing  the  railway.'' 
The  general  power  to  do  all  other  acts,  &c,  must  be  read  with  refer- 
ence to  this  object.  If  this  mode  of  construing  the  section  by  the 
context  is  adopted,  there  will  be  no  difficulty  in  understanding  the 
words  "all  other  acts  necessary  for  using  the  railway"  to  mean, 
that,  for  the  purpose  of  constructing  the  railway,  the  defendants  may 
do  all  acts  necessary  to  enable  them  to  use  the  railway.  This  con- 
struction appears  to  me  to  be  aided  by  the  words  which  are  found 
in  juxtaposition  with  the  word  "  using,"  —  viz.,  "  making,  maintain- 
ing, altering,  and  repairing  ; "  and  it  seems  to  me  rather  a  forced  in- 
terpretation of  language  to  say  that  the  words  "  the  defendants  may 
do  all  acts  necessary  for  using  the  railway  "  mean  they  may  do  all 
necessary  acts  in  using  the  railway.  I  think  that  the  proviso 
must  be  limited  to  the  powers  conferred  by  the  section,  and  that 
it  is  only  if,  in  the  exercise  of  those  powers,  damage  is  sustained 
that  satisfaction  is  to  be  made.  The  section  itself  having  em- 
powered the  defendants  to  perform  certain  works  for  the  purpose 
of  constructing  the  railway,  the  proviso  enacts  that,  "  in  the  exer- 
cise of  the  powers,  &c,  they  shall  do  as  little  damage  as  can  be," 


6-44  ACTION   (right  of). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


clearly  pointing  to  the  execution  of  the  works  to  which  this  section 
relates,  and  confining  the  satisfaction  to  be  made  for  damage  done 
in  exercising  those  powers.  It  appears  to  me  that,  in  the  reason- 
able construction  of  this  section,  it  is  impossible  to  hold  that  it 
gives  any  remedy  to  the  plaintiffs  for  damage  occasioned  to  their 
house  in  the  course  of  using  the  railway.  And  there  being  no 
other  legislative  provisions  upon  which  the  plaintiff's'  claim  to 
compensation  can  be  founded  except  the  6th  and  16th  sections  of 
The  Railways  Clauses  Act,  which  1  have  fully  considered  and  shown 
not  to  apply  to  that  species  of  injury  of  which  they  complain,  I  am 
compelled,  very  reluctantly,  in  a  case  where  real  damage  has  been 
sustained,  though  not  to  a  very  large  amount,  to  come  to  the  con- 
clusion that  the  Legislature  has  not  provided  for  the  case  of  these 
respondents,  but  has  left  them  without  remedy ;  and  that  the 
judgment  of  the  Court  of  Exchequer  Chamber  ought  therefore  to 
be  reversed. 

Lord  Colonsay.  My  Lords,  I  have,  I  confess,  found  this  case 
to  be  attended  with  much  difficulty,  and  I  think  I  need  not  refrain 
from  stating  that,  when  I  find  that  there  has  been  so  much  differ- 
ence of  opinion  in  regard  to  it  among  the  judges  who  have  decided 
it  in  the  other  Courts,  and  that  there  is  even  a  difference  of  opinion 
among  your  Lordships. 

The  case  arises  out  of  a  claim  made  by  a  party  for  injury 
to  her  property,  resulting  from  vibration  caused  by  the  use  of 
the  railway  belonging  to  the  defendants.  The  claim  is  rested 
on  the  provisions  contained  in  certain  statutes,  and  depends  on 
the  construction  to  be  put  on  those  provisions.  Two  general 
Acts  and  the  special  Act  for  this  railway  have  been  referred 
to,  but  I  do  not  understand  that  under  the  special  Act  there 
is  any  particular  clause  that  can  affect  the  judgment  to  be 
pronounced  in  this  case.  The  two  general  Acts  are  The  Lands 
Clauses  Consolidation  Act  and  The  Railways  Clauses  Consolidation 
Act,  both  of  which  are  held  to  be  incorporated  in  the  special  Act. 
It  is,  I  think,  upon  the  provisions  of  the  two  general  Acts  that  the 
question  depends.  One  of  those  general  Acts  — to  wit,  The  Lands 
Clauses  Act  —  has,  I  humbly  venture  to  think,  only  an  indirect 
bearing  on  the  question.  No  land  belonging  to  the  plaintiffs,  or  in 
which  they  were  interested,  was  taken  or  touched  by  the  railway. 
Their  case  is  not  directly  within  the  provisions,  as  I  read  them,  of 
that  Act.     I  think  it  is  very  clear   that  unless  the  case  comes 


SECT.  III. — WHERE   ADEEMED   OR   ABRIDGED   BY   STATUTE.       645 
No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 

within  the  provisions  of  the  68th  section  of  that  Act  it  is  not  within 
the  provisions  of  that  Act  at  all.  Nevertheless,  in  reading  The  Rail- 
ways Clauses  Act,  on  which  I  think  the  claim  of  the  plaintiffs  must 
be  rested,  it  is  not  illegitimate  to  borrow  such  light  as  can  be  got 
from  the  language  of  The  Lands  Clauses  Act,  passed  at  the  same 
time,  and  intended  to  be  co-operative  with  The  Railways  Clauses 
Act,  repeatedly  referred  to  in  it  and  intended  to  be  incorporated 
in  the  special  Act  for  making  the  railway. 

Now,  when  I  have  said  that  I  do  not  think  The  Lands  Clauses 
Act  bears  on  this  claim  otherwise  than  indirectly,  I  may  explain 
that  it  appears  to  me  that  the  object  of  The  Lands  Clauses  Act 
is  to  give  a  power  to  parties  engaged  in  this  species  of  public 
undertakings  to  acquire  lands.  The  preamble  of  the  Act  says, 
"Whereas  it  is  expedient  to  comprise  in  one  general  Act  sundry  pro- 
visions usually  introduced  into  Acts  of  Parliament  relative  to  the 
acquisition  of  lands  required  for  undertakings  or  works  of  a  public 
nature  and  to  the  compensation  to  be  made  for  the  same,  and  that 
as  well  for  the  purpose  of  avoiding  the  necessity  of  repeating  such 
provisions  in  each  of  the  several  Acts  relating  to  such  under- 
takings as  for  insuring  greater  uniformity  in  the  provisions  them- 
selves." Then  it  goes  on  to  enact  certain  things  with  regard  to 
the  purchase  of  lands  for  such  undertakings.  The  provisions  of 
the  Act  are  classified  under  various  subdivisions,  with  appropriate 
headings  indicating  the  objects  of  the  clauses  in  each  subdivision. 
The  first  of  these  is,  "  With  respect  to  the  purchase  of  lands  by 
agreement."  That  begins  with  the  6th  section  and  ends  with  the 
15th  section.  Then  there  is  another  heading:  "  And  with  respect 
to  the  purchase  and  taking  of  lands  otherwise  than  by  agreement, 
be  it  enacted  as  follows."  Then  comes  another  heading  :  "With 
respect  to  the  purchase-money  or  compensation  coming  to  parties 
having  limited  interests  or  prevented  from  treating  or  not  making 
title,  be  it  enacted  as  follows."  Then  another  heading:  "And 
with  respect  to  the  conveyances  of  lands,  be  it  enacted  as  follows." 
Then  another  heading  :  "And  with  respect  to  the  entry  upon  lands 
by  the  promoters  of  the  undertaking,  be  it  enacted  as  follows." 
And  so  on,  with  regard  to  various  matters  as  to  the  taking  of 
lands.  I  am  not  speaking  at  present  of  the  68th  section  ;  but 
all  the  other  clauses  are  applicable  only  to  the  promoters  of  the  un- 
dertaking and  to  the  persons  interested  in  lands  to  be  taken.  There 
is  no  other  class  of  persons  contemplated  in  that  statute.     It  is 


046  ACTION    (RIGHT   OF). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


not  a  statute  authorising  the  execution  of  any  particular  kind  of 
works,  —  that  is  left  to  other  legislation.  It  is  a  statute  only  as 
to  the  taking  of  land.  It  is  intended  to  regulate  the  interests  of 
the  parties  who  take  the  lands,  and  of  the  parties  to  whom  the 
lands  belong  or  who  are  interested  in  the  lands  to  be  taken.  It 
provides  on  behalf  of  the  parties  whose  lands  are  to  be  taken,  not 
only  that  they  are  to  receive  the  value  of  the  lands  so  taken  from 
them,  but  it  provides  also  that  they  are  to  be  compensated  for  the 
injury  done  to  any  lands  held  along  with  such  lands,  whether  by 
severance  or  any  other  injury  done  to  them  ;  but  all  this  has  refer- 
ence only  to  the  parties  whose  lands  are  to  be  taken,  or  who  are 
interested  in  lands  to  be  taken. 

The  sections  which  were  specially  referred  to  in  the  argument 
were  the  18th,  21st,  38th,  40th,  63rd,  and  68th  ;  and  it  will  be 
seen  that  throughout  the  whole  of  them,  unless  the  68th  is  an 
exception,  the  matter  to  be  dealt  with  is,  the  interests  of  the  parties 
from  whom  lands  are  taken  or  who  are  interested  in  such  lands, 
and  the  interests  of  the  railway  company  or  of  the  promoters  of 
the  undertaking,  whatever  it  may  be. 

Then  I  come  to  the  68th  section,  which  is  the  only  one  founded 
on  as  of  wider  application.  Now,  that  section  is  one  of  the  series 
of  clauses  placed  under  the  heading,  "With  respect  to  the  purchase 
and  taking  of  lands  otherwise  than  by  agreement,  be  it  enacted  as 
follows."  That  heading  covers  the  sections  beginning  with  the  15th 
section  and  ending  with  the  68th  ;  and  then  follow  the  sections, 
"  With  respect  to  the  purchase-money  or  compensation  coming  to 
parties  having  limited  interests."  Section  68  says  that,  "  If  any 
party  shall  be  entitled  to  any  compensation  in  respect  of  any  lands, 
or  of  any  interest  therein,  which  shall  have  been  taken  for  or  inju- 
riously affected  by  the  execution  of  the  works,  and  for  which  the 
promoters  of  the  undertaking  shall  not  have  made  satisfaction 
under  the  provisions  of  this  or  the  special  Act,  or  any  Act  incor- 
porated therewith,  and  if  the  compensation  claimed  in  such  case 
shall  exceed  the  sum  of  £50,  such  party  may  have  the  same  settled 
either  by  arbitration  or  by  the  verdict  of  a  jury,  as  he  shall  think 
fit."  Upon  this  clause  I  would  in  the  first  place  observe,  that  the 
object  in  contemplation  appears  to  have  been,  to  prescribe  the 
manner  in  which  claims  brought  forward  under  certain  circum- 
stances are  to  be  investigated,  not  to  introduce  a  new  class  of 
parties  who  were  not  entitled  to  come  in  under  the  previous  sec- 


SECT.  III.  —  WHERE   ADEEMED   OK   ABRIDGED    BY   STATUTE.       647 
No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 

tions  :  "  If  any  party  shall  lie  entitled  to  compensation,"  he  may, 
iu  certain  circumstances,  adopt  a  particular  course ;  but  it  is  only 
by  reference  to  the  previous  sections  that  you  can  find  out  whether 
he  is  a  party  entitled  to  any  compensation;  and  these  previous 
s  ictions,  as  I  have  already  shown,  do  not  recognise  a  title  to  com- 
pensation as  belonging  to  any  person  situated  as  this  claimant  is. 
No  doubt,  with  reference  to  the  parties  who  by  the  previous 
sections  are  recognised  as  entitled  to  compensation, —  namely, 
the  owners  or  occupiers  of  or  parties  interested  in  lands  taken 
or  used,  —  this  section  contemplates  compensation  in  respect  of 
land  injuriously  affected  by  the  execution  of  the  works.  But 
these  expressions,  "injuriously  affected  by  the  execution  of  the 
works,"  occur  repeatedly  in  the  previous  clauses  of  the  statute, 
where  they  are  throughout  confined  to  the  persons  who  are  to  get 
notice  and  from  whom  lands  are  taken,  or  who  have  other  lands 
which  may  be  affected  by  such  proceedings.  I  therefore  think 
that  this  section  of  the  statute  must  be  read  as  a  part  of  that  class 
of  sections  which  have  reference  to  the  person  and  subjects  men- 
tioned under  the  heading  prefixed  to  that  class  of  sections,  and 
must  be  limited  in  its  operation  to  the  persons  and  matters  with 
which  it  is  immediately  connected.  In  the  second  place,  even  if 
it  were  to  be  read  otherwise,  it  will  be  observed  that  there  is  a 
limitation  involved  in  the  expression,  "affected  by  the  execu- 
tion of  the  works."  I  shall  afterwards  notice  the  import  and 
effect  of  such  a  limitation  ;  but  in  the  mean  time,  it  appears  to  me 
that  this  section  is  one  of  those  which  have  reference  to  the  taking 
of  lands  otherwise  than  by  agreement,  and  has  reference  only  to 
parties  who,  under  the  other  sections  of  the  statute  to  which  I 
have  referred,  would  be  entitled  to  compensation,  but  who  have 
been  omitted  or  overlooked  in  the  proceedings  that  may  have 
taken  place.  It  may  very  well  be  that  parties  having  certain 
interests  in  lands  taken,  or  in  lands  severed  by  reason  of  the 
taking,  may  not  have  been  found  out  at  the  time,  and  may  have 
come  forward  afterwards  to  make  a  claim.  Notice  is  required  to 
lie  given  to  owners  and  occupiers  and  to  all  parties  known  to  be 
interested,  but  there  may  happen  to  be  parties  interested  who  have 
not  had  notice,  or  whose  interests  may  not  have  been  known;  and 
it  is  right  that  such  parties,  if  they  turn  up,  should  have  an  oppor- 
tunity of  coming  forward  and  making  a  claim.  That  this  was 
intended  further  appears  from  the  circumstances  of  the  section 


648  ACTION   (right  of). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


being  applicable  only  to  claims  exceeding  £50  in  value.  Why 
should  claims  of  smaller  amounts  be  excluded,  if  the  purpose  was 
to  give  rights  of  compensation  to  an  additional  class  of  persons  ? 
In  the  preceding  sections  there  are  modes  given  of  opening  up 
other  claims  of  absent  parties,  and  settling  them  by  arbitration  ; 
but  here,  when  the  claims  are  above  £50,  the  parties  are  to  have 
the  choice  of  arbitration  or  a  jury.  That  goes,  I  think,  to  confirm 
the  view  that  this  is  a  clause  providing  machinery  in  connection 
with  the  previous  sections. 

But  it  appears  to  me  that  The  Kailways  Clauses  Act  stands 
upon  a  different  footing.  That  Act  has  reference  to  that  particular 
species  of  undertaking  called  a  railway  ;  and  I  think  it  is  in  that 
Act  that  we  may  expect  to  find  the  materials  for  dealing  with 
claims  in  reference  to  such  undertakings.  It  provides  for  compen- 
sation, not  referring  to  The  Lands  Clauses  Act  as  containing  the 
rule  for  compensation,  but  only  referring  to  that  Act  for  the 
machinery  by  which  compensation  is  to  be  adjudged.  It  does  not 
take  The  Lands  Clauses  Act  as  giving  the  rule  in  regard  to  the 
parties  to  whom  or  the  matters  for  which  compensation  is  to  be 
given.  On  the  contrary,  it  contains  its  own  provision  with  regard 
to  the  matter,  including  such  cases  as  wTe  are  here  dealing  with,  in 
so  far  as  compensation  was  contemplated.  1  think  The  Kailways 
Clauses  Act  is  of  wider  application  than  The  Lands  Clauses  Act, 
as  regards  the  parties  entitled  to  compensation,  and  also  as  regards 
the  matters  for  which  compensation  may  be  given. 

The  important  sections  are  the  6th  and  the  16th.  Both  of  these 
sections  are  under  the  heading,  "  With  respect  to  the  construction 
of  the  railway,  and  the  works  connected  therewith."  The  6th  sec- 
tion appears  to  me  to  be  on  the  whole  the  most  important  and  the 
most  general.  It  says  that,  "  in  exercising  the  power  given  to  the 
company  by  the  special  Act  to  construct  the  railway,  and  to  take 
lands  for  that  purpose,  the  company  shall  be  subject  to  the  pro- 
visions and  restrictions  contained  in  this  Act  and  in  the  said 
Lands  Clauses  Consolidation  (Scotland)  Act ;  and  the  company 
shall  make  to  the  owners  and  occupiers  of,  and  all  other  parties 
interested  in,  any  lands  taken  or  used  for  the  purposes  of  the  rail- 
way, or  injuriously  affected  by  the  construction  thereof,  full  com- 
pensation for  the  value  of  the  lands  so  taken  or  used,  and  for  all 
damage  sustained  by  such  owners,  occupiers,  and  other  parties,  by 
reason  of  the  exercise,  as  regards  such  lands,  of  the  powers  by  this 


SECT.  III.  —  WHERE    ADEEMED    OK    ABRIDGED    BY    STATUTE.       649 
No.  9.  —  Hammersmith  Rrilway  Co.  v.  Brand. 


or  the  special  Act,  or  any  Act  incorporated  therewith,  vested  in 
the  company." 

Under  this  clause  companies  are  to  make  compensation  to  cer- 
tain parties  for  certain  things.  They  are  to  make  compensation  to 
the  owners  and  occupiers,  and  other  parties  interested  m  any  lands. 
What  lands?  "Lands  taken  or  used  for  the  purposes  of  the  rail- 
way." So  far  clear,  but  it  does  not  stop  there.  They  are  to  make 
compensation  to  the  owners  and  occupiers  of  lands  "injuriously 
affected  by  the  construction  thereof."  Now,  1  think  it  is  very 
clear  that  among  the  owners  and  occupiers  to  whom  compensation 
is  to  be  made  are  the  owners  and  occupiers  of  lands  injuriously 
affected  by  the  construction  of  the  railway.  The  plaintiffs  in  this 
case  are  the  owners  and  occupiers  of  land  injuriously  affected  by 
the  construction  of  the  railway,  and  are  therefore  parties  compre- 
hended within  the  class  of  persons  who  are  entitled  to  claim  com- 
pensation. Then,  what  is  the  matter  for  which  compensation  is  to 
be  made  ?  It  is  to  be  made  for  "the  value  of  the  lands  so  taken 
and  used."  That  does  not  apply  to  the  plaintiffs'  case.  But  the 
section  goes  on,  "  and  for  all  damage  sustained  by  such  owners  and 
occupiers  by  reason  of  the  exercise,  as  regards  such  lands"  (which 
includes  the  lands  of  the  plaintiffs),  "of  the  powers  by  this  or  the 
special  Act,  or  any  Act  incorporated  therewith,  vested  in  the 
company." 

Now,  the  claimants  of  compensation  here  are  owner  and  occu- 
pier of  lands  injuriously  affected  by  reason  of  the  exercise  of  the 
powers  vested  by  the  Act  in  this  company.  It  is  very  clear  that 
their  property  has  been  injuriously  affected  by  the  exercise  of  the 
powers  vested  in  the  company.  It  has  been  injuriously  affected 
by  the  construction  of  the  railway, —  the  very  words  of  the  clause 
being  "by  the  construction  thereof."  Therefore,  they  are  persons 
who  under  this  clause  are  entitled  to  come  forward  and  make  a 
claim.  Their  property  was  in  the  predicament  which  this  clause 
contemplates  as  property  "injuriously  affected,"  and  therefore  they 
are  persons  entitled  to  Compensation. 

Then  the  question  arises,  how  far  that  compensation  is  to  go? 
Is  it  to  go  beyond  the  measure  in  which  they  are  injuriously 
affected  "  by  the  construction  "  of  the  railway  ?  Is  it  to  be  extended 
to  any  injury  which  their  property  has  sustained  by  the  use  of  the 
railway?  Compensation  has  been  awarded  to  them  for  the  injury 
done  by  "  the  construction  of"  the  railway  as  affecting  the  access  to 


650  ACTION  (right  of). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


their  property,  and  the  lights,  and  so  forth.  The  sum  of  £800  and 
odd  has  been  assessed  for  that.  But  the  question  remains  whether 
the  statute  by  this  enactment  provides  for  compensation  to  be 
given  for  damage  sustained,  not  only  by  reason  of  the  construction 
of  the  railway  and  the  works  connected  therewith,  but  by  reason  of 
the  subsequent  use  of  the  railway  by  the  running  thereon  of  loco- 
motives causing  vibration.  I  mean,  of  course,  the  vibration  un- 
avoidable in  the  fair  and  proper  use  of  the  railway. 

Before  expressing  any  opinion  on  that  question,  I  should  like  to 
refer  to  the  terms  of  the  other  section  of  the  statute  which  has 
been  founded  upon  in  support  of  the  claim.  It  is  the  ICth  section, 
and  it  says  that,  "  subject  to  the  provisions  and  restrictions  in  this 
and  the  special  Act,  and  any  Act  incorporated  therewith,  it  shall  be 
lawful  for  the  company,  for  the  purpose  of  constructing  the  rail- 
way, or  the  accommodation  works  connected  therewith,  hereinafter 
mentioned,  to  execute  any  of  the  following  works."  Then  the 
things  allowed  to  be  done  are  specially  enumerated:  to  construct 
inclined  planes  ;  to  alter  the  course  of  rivers,  &c,  ;  to  make  drains  ; 
to  erect  warehouses,  &c. ;  and  to  make  alterations  and  repairs.  And 
then  there  is  this  general  clause:  "They  may  do  all  other  acts 
necessary  for  making,  maintaining,  altering,  or  repairing  and  using 
the  railway."  And  then,  as  part  of  the  same  section  16,  there  is  a 
clause  of  compensation  in  these  terms:  "Provided  always,  that  in 
the  exercise  of  the  powers  by  this  or  the  special  Act  granted,  the 
compauy  shall  do  as  little  damage  as  can  be,  and  shall  make  full 
satisfaction  in  manner  herein  and  in  the  special  Act,  and  any  Acts 
incorporated  therewith,  provided,  to  all  parties  interested,  for  all 
damage  by  them  sustained  by  reason  of  the  exercise  of  such 
powers." 

Now,  it  appears  to  me  that  this  provision  for  compensation  has 
reference  to  matters  such  as  are  comprehended  in  that  same  sec- 
tion 1(3.  The  question,  therefore,  comes  to  be,  whether  the  general 
expression  that  they  may  do  "all  other  acts  necessary  for  making, 
maintaining,  altering,  or  repairing  and  using  the  railway"  compre- 
hends the  claim  now  made  for  vibration  in  respect  of  the  railway 
being  used.  I  confess  it  does  not  appear  to  me  to  comprehend  this. 
I  think  this  16th  section  has  reference  altogether  to  the  construc- 
tion of  the  railway,  and  to  certain  things  being  done  to  enable  the 
company  to  construct  and  repair  the  railway  and  to  make  it  ready 
or  fit  for  use.     I  think  it  has  reference  to  all  the  acts  mentioned  in 


SECT.  III.  —  WHERE    ADEEMED    OR    ABRIDGED    BY    STATUTE.       651 
No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 

it,  —  the  making  of  drains  and  inclined  planes,  altering  and  repairing 
the  works,  and  all  other  acts  necessary  fur  making  or  maintaining, 
altering  or  repairing,  and  necessary  for  using  the  railway  ;  that  is 
to  say,  the  acts  or  operations  enumerated  and  all  other  such  acts  of 
construction  as  may  be  necessary  for  putting  the  railway  in  a  con- 
dition to  be  used.  That  is  the  interpretation  I  put  on  these  words 
and  on  the  16th  section.  I  do  not  think  that  "acts  done  for  using 
the  railway  "  is  the  same  thing  as  consequences  resulting  from  the 
use  of  the  railway. 

Then,  when  I  go  back  to  the  6th  section,  I  think  that  it  points 
in  the  same  direction  ;  that  is,  that  the  right  to  compensation  given 
by  it  is  limited  to  compensation  for  the  injury  done  by  the  con- 
struction of  the  railway.  It  contains  nothing  whatever  as  to  com- 
pensation for  the  use  to  be  made  of  the  railway.  That  is  not 
alluded  to.  If  compensation  had  been  intended  to  be  given  for 
any  injury  of  this  kind  incident  to  the  subsequent  using  of  the 
railway  by  locomotives  or  otherwise,  I  should  have  expected  some- 
thing to  be  said  with  reference  to  it ;  I  should  not  expect  to  find  in 
The  Lands  Clauses  Acts  anything  with  reference  to  the  use  to  be 
made  of  any  particular  kind  of  works,  because  that  Act  has  nothing 
to  do  with  the  kind  or  character  of  works  to  be  constructed,  or  of 
the  uses  that  may  be  made  of  them.  But  in  the  other  Act,  in  which, 
we  have  statutory  enactments  with  regard  to  a  particular  class  of 
public  works,  —  namely,  railways,  —  I  should  have  expected  to  find 
something  expressed  with  regard  to  claims  for  compensation,  not 
merely  for  injury  done  by  the  construction,  but  also  for  injury 
resulting  from  the  subsequent  use  of  locomotives,  if  such  compen- 
sation had  been  intended  to  be  given.  I  think  one  can  see  reasons 
why  such  a  wide  claim  should  not  have  been  given  ;  but,  however 
that  may  be,  I  can  look  only  at  the  statute  itself,  and  state  the 
construction  which  I  feel  myself  bound  to  put  upon  the  statute. 
This  question  is  no  way  affected  by  the  circumstance  of  the  par- 
ticular lands  being  or  not  being  within  the  limits  of  deviation  in 
the  special  Act.  The  claim,  if  maintainable  at  all,  could  not  have 
been  confined  to  lands  within  the  limits  of  deviation,  because  injury 
by  vibration  might  equally  be  done  to  lands  more  remote,  and  the 
claim  would  be  equally  well  founded  if  at  all  tenable.  I  think  that 
when  the  legislature  gives  powers  under  a  particular  Act,  the  pro- 
vision for  compensation  in  so  far  as  intended  would  be  expressed  in 
that  Act,  and  might  with  propriety  be  different,  according  to  the 


G52  ACTION  (right  of). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


nature  of  the  works  to  be  constructed  and  the  use  to  be  made  of  it. 
The  legislature  has  not  yet  made  clauses  in  regard  to  all  kinds  of 
public  works.  It  has  made  such  an  Act  with  regard  to  railways, 
and  I  do  not  find  within  that  Act  what  I  consider  as  a  right  to 
claim  compensation  for  vibration  by  reason  of  the  subsequent  use 
of  the  railway  when  made.  T  therefore  feel  myself  under  the 
necessity  of  concurring  in  the  judgment  that  has  been  suggested  by 
my  noble  and  learned  friend. 

Lord  Cairns.  My  Lords,  in  a  case  which  certainly  is  not  without 
difficulties,  and  which  has  caused  much  difference  of  opinion  in  the 
Courts  below  and  among  the  learned  Judges  who  have  assisted  your 
Lordships,  it  is  not  perhaps  surprising  that  the  same  difference  of 
opinion  should  reach  your  Lordships'  House  ;  and  I  regret  very  much 
that  I  am  unable  to  concur  in  the  views  of  my  noble  and  learned 
friends  who  have  just  spoken. 

On  one  part  of  the  case  I  do  entirely  concur  with  them.  It 
appears  to  me  that  the  effect  of  the  legislation  on  this  subject  is  to 
take  away  any  right  of  action  on  the  part  of  the  landowner  against 
the  railway  company  for  damage  that  the  landowner  has  sustained. 
It  must  be  taken,  I  think,  from  the  statements  in  this  case,  that  the 
railway  could  not  be  used  for  the  purpose  for  which  it  was  in- 
•tended  without  vibration.  It  is  clear  to  demonstration  that  the 
intention  of  Parliament  was  that  the  railway  should  be  used.  If, 
therefore,  it  could  not  be  used  without  vibration,  and  if  vibration 
necessarily  caused  damage  to  the  adjacent  landowner,  and  if  it  was 
intended  to  preserve  to  the  adjacent  landowner  his  right  of  action, 
the  consequence  wTould  be  that  action  after  action  would  be  main- 
tainable against  the  railway  company  for  the  damage  which  the 
landowner  sustained  ;  and  after  some  actions  had  been  brought  and 
had  succeeded,  the  Court  of  Chancery  would  interfere  by  injunction 
and  would  prevent  the  railway  being  worked,  which  of  course  is  a 
reductio  ml  absurdum,  and  would  defeat  the  intention  of  the  legis- 
lature. I  have,  therefore,  no  hesitation  in  arriving  at  the  con- 
clusion that  no  action  would  be  maintainable  against  the  railway 
company. 

That  fact  alone  would  certainly  predispose  the  mind  to  find  in 
the  enactments  upon  the  subject  compensation  given  in  some  form 
or  other  for  the  loss  which,  beyond  all  doubt,  the  landowner  in 
such  a  case  sustains.  I  do  not  mean  to  say  that  it  would  be  safe 
to  strain  the  words  of  an  Act  of  Parliament  on  account  of  consider- 


SECT.  III.  —  WHERE    ADEEMED   OK    ABRIDGED    BY   STATUTE.      653 
No  9.  —  Hammersmith  Railway  Co.  v.  Brand. 

ations  of  that  kind;  but  if  there  be  any  doubt  or  ambiguity  in  the 
words,  the  consideration  ought  not  to  be  overlooked  that,  beyond 
all  doubt,  the  intention  of  legislation  of  this  kind  is  that,  in  some 
shape  or  other,  eompensation  should  be  made  to  those  who  sustain 
loss  or  harm  by  the  operation  of  the  parliamentary  powers. 

It  appears  to  me  that  it  is  not  necessary  in  any  way  to  strain 
the  words  of  the  Acts  of  Parliament  in  this  case  ;  but  it  is  neces- 
sary in  the  first  place  to  be  perfectly  clear  as  to  what  Acts  of 
Parliament  and  what  clauses  apply.  In  my  opinion  there  are  two 
Acts  of  Parliament  which  must  be  looked  at  for  this  purpose,  both 
The  Lands  Clauses  Consolidation  Act  and  The  Railways  Clauses 
Consolidation  Act.  My  Lords,  with  regard  to  The  Lands  Clauses 
Act, there  is  no  doubt  that  it  is  mainly  conversant  with  regard  to 
the  taking  and  purchase  of  land  ;  but  it  would  be  a  great  mistake 
to  suppose,  and  it  would  be  at  variance  with  the  well  settled 
practice  upon  the  subject,  to  hold  that  the  Act  is  confined  to  the 
taking  Qf  land,  and  in  fact  the  frame  of  The  Lands  Clauses  Act 
shows  that  it  is  even  dangerous  to  trust  to  the  headings  which 
occur  at  the  commencement  of  these  fasciculi  of  clauses  for  the 
purpose  of  restraining  or  confining  the  natural  operation  of  the 
words  which  you  find  in  the  various  clauses  under  those  headings. 
I  will  illustrate  what  I  mean  by  one  fasciculus  of  clauses  in  The 
Lands  Clauses  Act.  The  16th  clause  is  prefaced  by  these  words, 
"With  respect  to  the  purchase  and  taking  of  lands  otherwise  than 
by  agreement,  be  it  enacted  as  follows."  The  bundle  of  clauses 
which  occurs  under  that  heading  runs  on  to  the  68th  section  ;  and 
if  you  were  to  take  the  literal  meaning  of  the  words  of  the  heading, 
you  might  expect  to  find  nothing  in  the  clauses  that  follow  except 
with  regard  to  the  purchase  and  taking  of  land,  and  you  might 
perhaps  say  that  you  must  interpret  every  clause  that  follows  as 
relating  to  the  taking  of  land  and  not  to  the  affecting  in  any  way 
of  land  which  is  not  taken.  But  when  we  turn  to  the  22nd  clause 
we  find  this  enactment:  "If  no  agreement  be  come  to  between  the 
promoters  of  the  undertaking  and  the  owners  of,  or  parties  by  this 
Act  enabled  to  sell  and  convey  or  release,  any  lands  taken  or  re- 
quired for  or  injuriously  affected  by  the  execution  of  the  under- 
taking, or  any  interest  in  such  lands  as  to  the  value  of  such  lands, 
or  of  any  interest  therein,  or  as  to  the  compensation  to  be  made  in 
respect  thereof,  and  if  in  any  such  case  the  compensation  claimed 
shall  not  exceed  £50  the  same  shall  be  settled  by  two  Justices." 


654  ACTION   (right  of). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


It  is  evident  that  various  classes  of  land  are  there  spoken  of; 
not  merely  land  which  is  taken  or  land  which  is  required,  but  also 
land  which  is  injuriously  affected  by  the  execution  of  the  under- 
taking. And  when  we  come  to  the  68th  clause  the  language  is 
still  more  significant.  The  enactment  is,  "  If  any  party  shall  be 
entitled  to  any  compensation  in  respect  of  any  lands,  or  of  any 
interest  therein,  which  shall  have  been  taken  for  or  injuriously 
affected  by  the  execution  of  the  works  and  for  which  the  promoters 
of  the  undertaking  shall  not  have  made  satisfaction  under  the 
provisions  of  this  or  the  special  Act  or  any  Act  incorporated  there- 
with ;  and  if  the  compensation  claimed  in  such  case  shall  exceed 
the  sum  of  £50  "  then  it  is  to  be  settled  by  arbitration  or  by  a  jury 
in  the  way  pointed  out. 

I  need  not  remind  your  Lordships  that  under  this  Act  of  Parlia- 
ment, passed  as  it  was  many  years  ago,  many  hundreds  of  thousands 
of  pounds  —  I  might  perhaps  say  millions  of  pounds  —  have  been 
paid  to  persons  not  one  inch  or  one  yard  of  whose  land  has  been 
taken  by  the  railway  company,  but  whose  land  has  been  (in  the 
Avoids  of  the  section)"  "  injuriously  affected"  by  the  execution  of 
the  works  (whatever  that  may  mean  is  another  point),  but  "injuri- 
ously affected"  as  a  matter  entirely  distinct  from  the  taking  of  the 
land.  That  shows,  I  think,  that  the  headings  of  these  clauses  are 
not  to  be  relied  upon,  —  and  many  other  instances  might  be  given 
of  the  same  kind  inside  the  clauses  themselves,  —  something  show- 
ing, in  the  same  way  that  an  Act  of  Parliament  often  goes  beyond 
the  preamble,  that  provisions  have  been  introduced  in  the  progress 
of  the  clauses  going  somewhat  beyond  the  short  and  summary 
definition  in  the  heading  of  the  clauses.  In  fact,  one  of  these  Acts 
of  Parliament  shows  that  these  short  headings  were  introduced 
merely  to  ear-mark  a  set  of  clauses  and  t<>  afford  a  short  and 
summary  way  by  which  they  might  lie  introduced  by  reference  as 
enactments  into  other  Acts  of  Parliament, 

I  have  gone  through  the  sections  in  The  Lands  Clauses  Act 
which  seem  to  me  to  be  relevant  to  this  matter,  and  all  that  I 
would  say  more  with  regard  to  them  is  this:  As  to  the  68th 
section,  to  which  I  have  referred,  I  agree  that  that  section  does 
not  define  the  conditions  under  which  the  person  whose  land  has 
become  injuriously  affected  is  to  be  entitled  to  compensation.  It 
rather  assumes  that  the  right  to  compensation  has  been  given  in 
some  other  enactments,  and  it  contents  itself  with  pointing  out  the 


SECT.  III.  —  WHERE   ADEEMED    OR    ABRIDGED   BY   STATUTE.       655 

No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 

manner  in  which  that  compensation  shall  be  obtained;  and  1  may 
observe  that  in  the  present  rase  the  whole  of  the  proceedings  have 

been  taken  under  The  Lands  Clauses  Act,  and  indeed  it  is  only 
under  The  Lands  Clauses  Act  that  a  jury  can  be  summoned  or  the 
aid  of  arbitration  invoked.  I  therefore  commence  with  The  Lands 
Clauses  Act  as  the  mode  in  which  compensation  is  to  he  obtained 
if  the  landowner  is  entitled  to  compensation  under  any  other 
provision. 

I  now  turn,  for  the  purpose  of  finding  the  kind  of  compensation 
to  he  given,  to  The  Railways  Clauses  Act.  1  will  only  ask  your 
Lordships  to  hear  in  mind  the  words,  in  the  68th  section  of  the  Act 
we  are  leaving  :  "  If  any  party  shall  be  entitled  to  any  compensation 
in  respect  of  any  lands  which  shall  have  been  injuriously  affected 
by  the  execution  of  the  works."  Now  let  us  turn  to  The  Railways 
Clauses  Act  in  the  fasciculus  of  clauses,  which  I  agree  commences 
with  these  words  :  '•  And,  with  respect  to  the  construction  of  the 
railway  and  the  works  connected  therewith,  be  it  enacted  as 
follows.1'  The  6th  section  is  in  these  words:  "In  exercising  the 
power  given  to  the  company  by  the  special  "Act  to  construct  the 
railway,  and  to  take  lands  for  that  purpose,  the  company  shall  lie 
subject  to  the  provisions  and  restrictions  contained  in  this  Act  and 
in  the  said  Lands  Clauses  Consolidation  Act"  (that  is,  in  the  68th 
section  among  others) ;  "  and  the  company  shall  make  to  the 
owners  and  occupiers  of,  and  all  other  parties  interested  in,  any 
lands  taken  or  used  for  the  purposes  of  the  railway,  or  injuriously 
affected  by  the  construction  thereof,  full  compensation  for  the 
value  of  the  lands  so  taken  or  used,  and  for  all  damage  sustained 
by  such  owners,  occupiers,  and  other  parties,  by  reason  of  the 
exercise,  as  regards  such  lands,  of  the  powers  by  this  or  the  special 
Act,  or  any  Act  incorporated  therewith,  vested  in  the  company." 
And  then  it  proceeds  to  say  that  the  compensation  shall  he  ascer- 
tainecl  under  The  Lands  Clauses  Act.  My  Lords,  I  desire,  in 
passing,  to  point  out  to  your  Lordships  that  the  words  are  evidently 
to  be  read  reddendo  singula  singulis.  If  the  land  be  taken  or  used, 
full  compensation  is  to  be.  made  for  the  value  of  the  land.  If  the 
land  be  not  taken  or  used,  but  be  injuriously  affected  by  the  con- 
struction of  the  railway,  then  compensation  is  to  be  made  for  the 
damage  sustained  by  the  owner  or  occupier  or  other  party  interested, 
by  reason  of  the  exercise,  as  regards  such  lands,  of  the  powers  by 
this  or  the  special  Act  vested  in  the  company. 


G56  ACTION    (RIGHT    OF). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


Then  the  16th  section  I  may  also  refer  to,  —  and  that  will  com- 
plete the  enumeration  of  the  enactments  with  which  we  have  to 
deal.  It  is  as  follows:  "Subject  to  the  provisions  and  restrictions 
in  this  and  the  special  Act,  and  any  Act  incorporated  therewith  " 
(that  is  to  say,  subject  to  the  provisions  and  restrictions  in 
The  Lands  Clauses  Consolidation  Act),  "  it  shall  be  lawful  for 
the  company,  for  the  purpose  of  constructing  the  railway,  or  the 
accommodation  works  connected  therewith,  hereinafter  mentioned, 
to  execute  any  of  the  following  works."  Then  follows  an  enumer- 
ation of  what  I  may  call  structural  works,  such  as  turning  the 
course  of  rivers,  making  railways  across  streets,  and  so  on  ;  and 
then  comes  this  final  power:  "They  may  do  all  other  acts  neces- 
sary for  making,  maintaining,  altering  or  repairing,  or  using  the 
railway."  Then  comes  what  appears  to  me  to  be  of  great  import- 
ance, —  the  term  and  condition  upon  which  alone  they  are  authorized 
and  empowered  to  make  these  structural  works;  and  the  condition 
is,  not  that,  in  the  exercise  of  those  structural  powers,  they  are  to 
make  certain  compensation,  but  "  that  in  the  exercise  of  the 
powers"  (that  is,  of  all  the  powers)  "by  this  or  the  special  Act 
granted,  the  company  shall  do  as  little  damage  as  can  be,  and 
shall  make  full  satisfaction  in  manner  herein  and  in  the  special 
Act,  and  any  Act  incorporated  therewith,  provided,  to  all  parties 
interested,  for  all  damage  by  them  sustained  by  reason  of  the 
exercise  of  such  powers,"  —  that  is;  of  all  the  powers  vested  in  the 
company. 

My  Loids,  I  venture  to  think  that  it  would  be  too  narrow  a 
construction  of  these  words  to  say  that  the  powers  here  mentioned 
are  simply  those  powers  which  are  immediately  before  enumerated. 
If  that  had  been  the  intention  of  the  legislature,  nothing  could 
have  been  easier  than  to  say,  and  indeed  it  would  have  been  much 
shorter  to  say,  "  Provided  always,  that,  in  the  exercise  of  such 
powers,  they  shall  make  full  compensation  to  the  persons  inter- 
ested." Then  we  should  have  known  exactly  that  what  was 
intended  was,  that  if,  by  reason  of  the  exercise  of  those  structural 
powers,  any  damage  was  done,  they  should  make  compensation. 
But,  on  the  contrary,  the  provision  is  in  substance  this  :  We,  the 
legislature,  will  authorize  you  to  make  these  structural  works, 
but  the  term  and  condition  upon  which  we  authorize  you  to  make 
them  is,  that  if  by  reason  of  the  exercise  of  any  of  the  powers 
by  this  or  the  special  Act  given  to  you  you  do  any  damage,  you 


SECT.  III.  — WHERE    ADEEMED    OR    ABRIDGED    BY    STATUTE.       651 


No.  9. — Hamm3rsmith  Railway  Co.  v.  Brand. 


shall  make  compensation  for  that  damage.  In  other  words,  we 
will  authorize  the  railway  to  be  made,  with  certain  powers  appen- 
dant and  annexed  to  the  making  of  the  railway,  one  of  the  main 
and  special  ones  of  which  is,  that  the  railway  shall  he  used  as  ;i 
passage  for  locomotive  engines;  hut  if,  by  reason  of  the  exercise 
of  any  of  the  powers  we  give  you,  you  do  damage,  you  shall  him. 
full  compensation  for  that  damage  to  the  persons  injured. 

Now,  having  taken  the  liberty  of  pointing  out  to  your  Lord- 
ships the  sections  with  which  we  have  to  deal,  I  shall  sum  up 
what  appears  to  me  to  be  the  true  and  proper  construction,  even 
if  we  were  dealing  with  the  6th  section  alone  of  The  Railways 
Clauses  Act,  of  those  words  which  have  been  referred  to  already, 
"injuriously  affected  by  the  construction  of  the  railway."  Even 
if  we  were  dealing  with  that  section  alone,  it  would  appear  to  me 
that  those  words,  "by  the  construction  of  the  railway,"  are  just 
the  same  words  and  intended  to  denote  the  same  idea  as  the  words 
in  the  68th  section  of  The  Lands  Clauses  Consolidation  Act, 
"  injuriously  affected  by  the  execution  of  the  works;"  and  that, 
even  dwelling  upon  those  two  sections  alone,  and  not  praying  in 
aid  at  all  the  16th  section,  the  position  of  things  would  be  this : 
Parliament  authorizes  the  construction  of  the  railway,  but  Parlia- 
ment does  not  look  upon  those  words,  "  the  construction  of  the 
railway  "  or  "  the  execution  of  the  works  authorized,"  as  meaning 
the  digging  out  so  much  land,  the  putting  so  much  brick  and 
mortar  together,  the  making  a  viaduct  or  the  making  an  embank- 
ment, or  the  mere  structural  aspect  of  the  work;  it  looks  upon 
the  railway  as  an  undertaking, — as  a  going  concern,  if  I  may 
so  call  it, —  as  a  thing  which  is  to  be  there  for  a  certain  purpose 
and  to  fulfil  a  certain  end  which  the  legislature  has  held  in  its 
view  ;  and  when  it  uses  the  terms  "  the  execution  of  the  works  " 
and  "the  construction  of  the  railway"  it  appears  to  me  to  point 
to  a  living  and  active  thing  which,  placed  on  the  spot  where 
Parliament  authorizes  it,  may  possibly  have  an  injurious  effect  on 
some  circumjacent  land.  And  then,  pointing  to  that  parliamen- 
tary power  which  is  given  to  construct  that  railway  or  to  execute 
that  work,  Parliament  says :  "  If  by  the  construction  of  this 
railway  with  these  incidents,  if  by  the  execution  of  these  works 
there  he  a  consequence  in  the  shape  of  damage  to  those  who  are 
in  the  neighbourhood,  that  damage  must  be  atoned  for  by 
compensation." 
vol.  i.  —  42 


658  ACTION   (right  of). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


This  case  might  be  illustrated  very  easily  by  putting  another 
case,  not  the  instance  of  a  railway.  The  Lauds  Clauses  Consolida- 
tion Act  applies  to  works  of  all  kinds,  not  merely  to  a  railway. 
Suppose  that,  under  a  special  Act  of  Parliament,  persons  were 
authorized  to  take  lands  for  the  purpose  of  making  in  a  particular 
locality  gas-works,  or  were  authorized  to  make  on  a  particular 
spot  copper-smelting  works,  either  of  which,  we  know,  when  they 
came  to  be  worked,  would  most  probably  produce  injury  to  the 
circumjacent  land,  although  the  land  around  may  not  be  taken  by 
the  company.  Supposing  Parliament  authorized  the  gas-works 
or  the  copper-smelting  works  to  be  conducted,  by.  words  of  enact- 
ment which  would  make  it  impossible  for  the  owner  of  the 
adjacent  land  to  maintain  an  action  for  the  injury  sustained,  and 
then  Parliament  said,  "  If  by  the  execution  of  these  works  the 
neighbouring  owners  sustain  any  damage,  you  shall  pay  for  such 
damage,"  I  should  understand  by  an  enactment  of  that  kind,  not 
that  the  neighbouring  owner  is  supposed  to  be  likely  to  sustain 
damage  by  the  construction  of  the  building,  by  putting  the  bricks 
and  mortar  together,  but  to  sustain  damage  by  those  works  as 
active,  going  works,  which  were  there  for  the  purpose  of  manufac- 
turing gas  or  smelting  copper,  as  the  case  may  be,  and  that  when 
Parliament  said,  "If  by  the  execution  of  these  works  damage  is 
done,"  Parliament  meant  to  say,  "If  by  the  execution  of  these 
works,  qua  gas-works  or  qua  copper-smelting  works,  continuing  to 
exist  and  actively  proceeding,  any  damage  is  done,"  that  damage 
shall  be  paid  for. 

I  may  remind  your  Lordships  that  this  question  was  very 
near  having  to  be  decided  once  in  your  Lordships'  House,  although 
from  circumstances  the  decision  became  unnecessary.  In  the 
case  of  Broadbeni  v.  The  Imperial  Gas  Company,  7  De  G.  M.  &  G. 
436,  447-448  ;  see  also  7  H.  L.  C.  600,  the  case  which  I  have 
supposed  was  very  near  happening.  The  company  was  authorized 
to  make  a  gas-wTorks  in  a  particular  place,  and  The  Lands  Clauses 
Act  was  incorporated  to  a  certain  extent  in  the  provisions  of  the 
special  Act;  but  there  was  a  clause  in  The  Gas  Clauses  Act,  also 
incorporated,  which  provided  that  in  carrying  on  their  works  ami 
making  gas  no  nuisance  or  injury  should  be  occasioned  to  any  of 
the  surrounding  land.  And  it  was  held  by  this  House,  as  might 
be  expected,  that  the  consequence  of  that  section  being  introduced 
was,  that  the  right  of  action  was  not  taken  away";  and  therefore 


SECT.  III.  —  WHERE   ADEEMED   OR    ABRIDGED    BY    STATUTE.       659 

No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 

it  was  not  necessary  to  consider  the  case  T  have  suggested.     But 

if  you  had  a  case  where  the  right  of  action  was  taken  away,  and 
where  Parliament  had  provided  that  compensation  should  be  made 
for  injury  dune  by  the  execution  of  the  works,  then,  in  my  opinion 
:at  least,  it  would  mean  and  imply  the  execution  of  the  works  of 
the  undertaking  as  an  active  and  going  concern.  That  would  ba 
the  opinion  which  I  should  entertain  of  the  6th  section  alone,  even 
without  the  16th  section. 

As  it  appears  to  me,  Mr.  Justice  Lrsii  has  expressed  with  gr  :a! 
felicity  the  same  idea  winch  I  have  entertained,  I  cannot  do  bed  r 
than  remind  your  Lordships  of  what  Mr.  Justice  LUSH  says:  "The 
Lands  Glauses  Act  is  designed,  not  for  railways  only,  but  for 
^ill  undertakings  for  which  compulsory  powers  of  taking  lands  are 
given.  And  every  special  Act  which  incorporates  its  provisions 
designates  and  fixes  the  purpose  for  which  the  land  is  to  be  taken, 
and  the  use  to  which  it  is  to  be  permanently  appropriated  ;  and 
the  company  who  are  empowered  to  take  it  are  bound  to  apply  it 
to  that  purpose,  and  to  that  purpose  only.  So  much  of  the  general 
Act  as  is  incorporated  becomes  part  of  the  special  Act,  and  its 
language,  as  part  of  that  Act,  becomes  pointed  to  the  particular 
work  or  undertaking  specified,  whatever  it  may  be,  whether  a 
railway,  a  dock,  a  canal  or  any  other  undertaking.  It  there 
authorizes  the  taking  of  the  land  for  the  purpose  of,  and  its  con- 
version into,  the  particular  railway,  dock,  or  canal,  in  order  that 
it  may  be  used  as  such.  The  undertaking  is  regarded  as  a  working 
-concern,  and  the  idea  of  its  use  as  a  railway,  dock,  or  canal  is  in 
the  mind  of  the  legislature  inseparable  from  that  of  its  con- 
struction. In  professing  to  give  compensation  for  all  damage 
sustained  by  the  owners  of  the  adjacent  land  by  the  execution  of 
the  works,  or  the  exercise  of  the  powers  of  the  Act  as  regards  such 
lands,  the  legislature  must,  as  it  appears  to  me,  have  had  in  view 
the  ultimate  object  aimed  at,  the  works  when  complete  and  in 
operation, —  the  dock,  railway,  or  canal,  —  not  abstractedly  as  a 
mere  excavation,  embankment,  or  reservoir,  but  in  connection  with 
its  appropriate  traffic,  and  with  the  ordinary  incidents  of  a  business 
undertaking." 

It  appears  to  me  that  if  it  is  necessary  to  go  beyond  that,  and  to 
make  the  case  still  clearer,  the  case  is  made  clearer  by  the  16th 
section,  because,  as  I  interpret  that  section,  it  gives  a  number  of 
powers,  structural  powers  I  agree  ;  but  to  make  it  the  term  and  condi- 


660  action  (right  of;. 


No.  0.  —  Hammersmith  Railway  Co.  v.  Brand. 


tion  of  exercising  those  structural  powers  —  of  interfering  with  rivers 
and  with  roads,  and  exercising  those  other,  which  may  be  termed 
violent  powers,  which  are  given  by  that  Act  or  by  the  special  Act  — 
that  the  company  shall  make  full  satisfaction  to  every  person  for 
all  damage  sustained  by  reason  of  the  exercise  of  such  powers, 
that  is,  of  all  the  powers  given  by  the  Act  to  the  company. 

Now,  my  Lords,  that  being  certainly  the  view  which  I  should 
take  of  the  construction  of  these  Acts  of  Parliament,  the  only 
other  matter  which  T  have. to  refer  to  is  what  appears  to  have 
weighed  in  the  minds  of  some  of  the  learned  Judges  who  were 
unable  to  adopt  this  view.  I  observe  that  some  of  those  learned 
persons  say  that  there  would  be  very  great  difficulty  in  estimating 
the  compensation,  because  the  damage  could  not  be  ascertained 
until  the  undertaking  became  what  I  may  call  a  going  concern, 
and  until  by  experience  you  had  ascertained  exactly  what  the 
amount  of  damage  or  injury  actually  was.  Now,  I  do  not  think 
there  is  any  difficulty  at  all  on  that  head.  In  the  first  place,  in 
the  present  case  which  we  have  here  before  us,  no  difficulty  seems 
to  have  occurred.  A  sum  has  been  found  by  the  jury,  nut  re]  re- 
senting merely  the  past  damage,  but  representing  the  whole 
damage  which,  in  the  opinion  of  the  jury,  both  had  been  sus- 
tained and  would  be  sustained  by  the  exercise  of  the  pn  rs 
given  to  the  company.  In  addition  to  that,  the  problem  which 
has  to  be  solved  appears  to  me  not  to  be  at  all  beyond  the  powers 
or  the  province  of  a  jury.  What  you  have  to  find  is,  what  is  the 
actual  deterioration  in  value.  You  have  a  certain  house,  and  near 
it  what  I  may  call  a  vibrating  railway,  —  I  mean  a  railway  in  the 
use  of  which  there  cannot  fail  to  be  vibration;  the  house  was  of 
a  certain  value  before  the  railway  was  put  there.  If  the  railway 
causes  vibration,  evidence  can  easily  be  obtained  to  prove  what 
the  amount  of  deterioration  in  value  is,  and  the  sum  can  be  awarded 
accordingly.  The  subject  may  be  illustrated  further  by  supposing 
a  house  used  for  a  particular  trade,  —  say  that  of  a  watch  or  clock 
maker,  which  requires  particular  steadiness  ;  serious  injury  might 
be  done  there,  and  the  house  might  become  useless  for  the  par- 
ticular purpose  for  which  it  was  used  before. 

But  in  addition  to  that,  it  is  said  that  you  ought  to  know  how 
many  trains  a  day  there  will  be  running,  and  the  weight  of  them.. 
and  the  speed  at  which  they  will  pass.  There  is  a  well-known 
principle  which  applies  to  such  cases,  which  is,  that  if  the  persons 


SECT.  III. —  WHKRK   ADEEMED   OK    ABRIDGED    BY   STATUTE.       661 
No.  9.  —  Hammersmith  Railway  Co.  v.  Brand. 


against  whom  the  claim  is  made  are  not  willing  to  bind  themselves 

as  to  the  maximum  number  of  trains,  or  the  weight,  or  the  speed, 
then  the  sum  must  be  taken  most  strongly  against  their  company, 
upon  the  principles  enunciated  in  the  well-known  old  case  of 
Armorie  v.  Delamirie,  1  Strange,  504.  And  the  largest  amount 
of  injury  which  can  be  sustained  would  probably  be  considered  to 
be  the  amount  to  be  awarded  by  the  tribunal  which  has  to  award 
compensation. 

I  might  mention  another  case  in  which  every  one  would  admit 
that  compensation  would  have  to  be  assessed  at  the  commence- 
ment; and  where  the  same  difficulty  might  occur.  Your  Lordships 
will  recollect  cases  which  have  come  before  this  House,  arising 
upon  questions  of  which  Sprott  v'.  The  Caledonian  Railway  Com- 
pany, 2  Macq.  Sc.  App.  Cas.  449,  may  be  taken  as  an  instance.  In 
those  cases  it  was  held  that  a  landowner  selling  a  strip  of  land  to 
the  railway  company  is  bound  to  give  lateral  support  to  resist  the 
pressure  which  a  heavy  train  passing  over  the  land  might  occasion. 
Now,  in  that  case  there  must  be  compensation  assessed  and  paya- 
ble for  the  land  taken  in  the  first  instance ;  yet  at  the  time  when 
that  compensation  was  so  assessed  it  might  not  be  known  what 
the  number  of  trains  passing  along  the  railway,  or  the  weight  or 
speed  of  them,  would  be,  and  therefore  it  might  not  be  possible 
to  say  with  mathematical  exactitude  what  would  be  the  precise 
amount  of  support  which  would  have  to  be  given  to  the  land  on 
each  side.  In  such  a  case  the  landowner  would  make  his  claim; 
he  would  show  that  the  nature  of  the  ground  was  such  that 
lateral  support  would  be  particularly  desirable  ;  he  would  show 
that  he  might  have  to  support  the  land  against  the  pressure  that 
would  be  created  by  a  great  number  of  trains  passing  every  day; 
and  he  would  claim,  and  probably  would  recover,  compensation 
for  the  maximum  amount  of  support  which  the  land  might  require. 
I  therefore  cannot  accept  the  suggested  difficulty  as  to  ascertain- 
ing the  amount  of  compensation  as  any  reason  why  the  Act  of 
Parliament  should  be  taken  as  having  a  meaning  other  than  what 
appears  to  me  to  be  the  plain  meaning  of  the  words. 

My  Lords,  [  regret  very  much  to  say  that  I  am  afraid  that  the 
result  will  be,  that  although  a  (dear  injury  and  damage  has  been 
sustained,  and  although  a  substantial  sum  has  been  awarded  by 
a  jury  to  the  landowner,  that  sum  will  not  be  recovered.  But  I 
have  been  unable  to  do  otherwise  than  to  express  t"  your   Lord- 


662  ACTION  (right  of). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand.  —  Notes. 

ships  the  view  which  I  entertain  as  to  the  construction  of  these* 
statutes  in  a  case  which,  as  it  appears  to  me,  may  he  one  of  great 
importance. 

Judgment  of  the  Exchequer  Chamber  reversed. 

Lords  Journals,  13th  July,  1869. 

ENGLISH   NOTES. 

The  former  branch  of  the  rule  is,  in  effect,  the  same  as  the  rule  m 
Vaughanv.  Toff  Vale  Ry.  Co.  (Accident,  No.  8,  p.  296,  sujira),  and 
the  relevant  English  cases  will  be  found  collected  in  the  English  note- 
there.  By  the  decision  of  the  House  of  Lords,  in  the  principal  case, 
this  rule  is,  for  English  purposes,  conclusively  settled. 

As  to  the  second  branch  of  the  rule,  it  will  be  observed  that  the  judg- 
ments are  based  upon  a  minute  criticism  of  the  English  Acts,  Briefly 
thus:  The  Lands  Clauses  Consolidation  Act,  1845,  is  outside  the  ques- 
tion, because  it  only  provides  compensation  to  owners  or  occupiers  of 
land  taken.  The  Railways  Clauses  Consolidation  Act,  1845,  however, 
by  §  6,  gives  a  right  of  compensation,  not  only  to  owners  and  occupiers 
of  land  taken,  but  also  to  owners  and  occupiers  of  land  injuriously 
affected  "by  the  construction"  of  the  railway.  The  plaintiff  in  tin- 
case  in  question  was  not  the  owner  or  occupier  of  lands  taken.  But 
neither  was  he  owner  or  occupier  of  land  injuriously  affected  "by  the 
construction"  of  the  railway;  for  the  nuisance  of  which  the  plaintiff 
complained  —  the  vibration  like  the  shock  of  an  earthquake,  recurring 
every  five  or  ten  minutes  —  was  caused,  not  by  the  construction  of  tin- 
railway,  hut  by  the  running  of  trains  under  the  powers  of  the  86th 
section  of  the  last-mentioned  Act.  And,  even  if  the  plaintiff's  house 
had  sustained  some  injury  by  the  construction,  the  (5th  section  of  the 
Act  would  not,  according  to  the  judgment  of  Lord  Chelmsford,  p.  641 
supra,  have  aided  the  owner  to  recover  damage  sustained  by  the 
running  of  the  trains.  Eor,  although  in  such  a  case  he  would  be  en- 
titled, under  §  6,  to  compensation  "by  reason  of  the  exercise  of  the 
powers"  of  the  Act,  that  expression  in  this  section  is  (according  to  this 
judgment)  to  be  read  as  limited  by  the  introductory  words  of  the  section  : 
"And  with  respect  to  the  construction  of  the  railway  and  the  works 
connected  therewith,  be  it  enacted." 

The  case  is  entirely  different  where  compensation  is  claimed  by  a 
landowner  under  the  63rd  section  of  The  Lands  Clauses  Consolidation 
Act,  1845.  His  right  to  full  compensation  ••by  the  exercise  of  the 
powers  "  of  the  Act  has  been  liberally  construed,  and  has  been  decided 
by  the  highest  authority  to  include  everything  arising  out  of  the  user, 


SECT.  III. — WHERE    ADEEMED    OR   ABRIDGED    BY   STATUTE.       663 
No.  9.  —  Hammersmith  Railway  Co.  v.  Brand.  —  Notes. 

as  well  as  out  of  the  construction,  of  the  railway.  Re  Stockport  Ry. 
Co.  (1864),  33  L.  J.  Q.  B.  251;  Duke  of  Buccleuch  v.  Met?.  Board  of 
Works  (Ex.  Ch.  1870),  L.  R,  5  Ex.  221,  per  Blackburn,  -I.,  p.  2:!5; 
and  in  House  of  Lords  (1872),  L.  R.,  5  H.  L.  418;  41  L.  J.  Ex.  137; 
Cowper-Essex  v.  Local  Hoard  of  Acton  (H.  L.  1889),  14  App.  ('as.  153, 
58  L.  J.  Q.  B.  594.  This  last-mentioned  case  arose  out  of  a  notice  by 
the  local  board  to  take,  under  their  compulsory  powers,  certain  land  of 
the  appellants  for  the  purpose  of  sewage  works.  In  assessing  compen- 
sation, the  jury  gave  a  verdict  for  the  value  of  the  land  taken,  and  a  fur- 
ther sum  for  damage  sustained  or  to  be  sustained  by  injuriously  affecting 
the  appellants'  other  lands  by  the  exercise  of  the  statutory  powers.  And 
they  took  into  consideration  the  prospective  damage  by  the  use  of  the 
sewage  works,  as  to  which  the  evidence  was  that,  although  they  might 
possibly  be  conducted  so  as  not  to  create  an  actionable  nuisance,  their  ex- 
istence would  depreciate  the  value  of  the  land  for  building  purposes.  The 
House  of  Lords,  reversing  the  decision  of  the  Court  of  Appeal,  affirmed 
the  judgment  of  the  Court  of  first  instance,  giving  full  effect  to  the  verdict. 

Where  the  owner's  land  is  not  taken,  but  his  land  is  injuriously 
affected  by  the  construction  of  the  railway  within  the  6th  section  of  The 
Railways  Clauses  Consolidation  Act,  1845,  the  full  claim  is  let  in  for  all 
damage  sustained  by  the  exercise,  as  regards  such  lands,  of  the  powers 
—  i.  e.,  at  all  events  of  the  constructive  powers  —  of  the  Act.  Thus 
in  the  arbitration  case  of  London  and  Tilbury,  &c.  Ry.  Co.  and  Trustees 
of  Goiver's  Walk  Schools  (1889),  24  Q.  B.  D.  326,  59  L.  J.  Q.  B.  162, 
where  land  of  the  trustees  had  not  been  taken,  but  their  land  had  been 
injuriously  affected  in  respect  of  ancient  lights,  by  a  building  erected  by 
the  railway  company,  —  being  a  work  within  their  statutory  powers,  — 
the  Court  of  Appeal,  following  the  principle  laid  down  by  the  House  of 
Lords  in  the  case  of  Cowper-Essex,  confirmed  an  award  giving  compen- 
sation not  only  in  respect  of  the  trustees'  strict  legal  right  to  their 
ancient  lights,  but  also  for  the  further  deterioration  which  the  same 
erection  caused  by  obstructing  the  lights  of  their  modern  windows. 

Some  reference  seems  necessary  here  to  a  Scotch  case  which  was 
decided  by  the  House  of  Lords  in  1870,  although  the  grounds  of  the 
decision  are  by  no  means  clear.  This  is  City  of  Glasgow  Union  Ry. 
Co.  v.  Hunter  (1870),  L.  R.,  2  H.  L.  Sc.  78.  Mr.  Hunter,  some  of 
whose  land  had  been  taken,  claimed  compensation  (inter  alia)  in  re- 
spect of  an  apprehended  and  prospective  damage  "caused  by  noise 
and  smoke  of  trains  and  general  nuisance;  "  and  an  award  had  been 
made  assessing  separate  damage  under  this  head.  The  House  of  Lords, 
reversing  the  judgment  of  the  Scotch  Courts,  decided  that  this  was  not 
a  subject  for  compensation.      Lord  Chelmsfokd   rests  his   judgment. 


064  ACTION   (RIGHT   OF). 


No.  9.  —  Hammersmith  Railway  Co.  v.  Brand.  —  Notes. 

and  the  Lord  Chancellor  (Hatherley)  and  Lord  Coloxsay  partly 
rest  theirs,  on  the  not  very  intelligible  ground  that  the  supposed  nui- 
sance was  expected  to  arise  from  the  user  of  a  part  of  the  line  not  con- 
structed upon  the  land  taken.  But  in  the  two  last-mentioned  judgments 
the  view  is  also  indicated  that  the  damage  by  "  noise  and  smoke  and 
general  nuisance  "  was  not  to  be  presumed  as  an  appreciable  item  of  com- 
pensation; and  Lord  Westbury's  judgment  is  on  the  narrow  ground 
that  such  an  item  ought  not  to  form  a  separate  head  of  compensation. 
In  the  case  of  Cowper-j&ssex  v.  Local  Bonn]  of  Acton,  Lord  Watson 
accepts  the  former  view  as  giving  the  ratio  decidendi,  and  regards  it 
as  binding  on  the  house;  but  Lord  Macnatshtex,  in  his  judgment  in 
the  same  case  (14  App.  Cas.  170).  takes  a  broader  view  of  the  intention 
of  the  legislature.  "I  think  it  impossible."'  he  says,  ''to  read  The 
Lands  Clauses  Consolidation  Act  without  seeing  that  it  was  the  inten- 
tion of  the  legislature  that  full  compensation  should  be  given  in  all 
cases  where  lands  are  taken  under  the  powers  of  the  Act  for  the  purpose 
of  a  public  undertaking." 

As  contrasted  with  the  narrow  provisions  as  to  compensation  in  The 
English  Railways  Clauses  Consolidation  Act  may  be  mentioned  the 
cognate  legislation  of  Lower  Canada,  as  pointed  out  by  the  judgment 
of  the  Judicial  Committee  of  the  Privy  Council,  in  North  Share  Ry. 
Co.  v.  Pion  (1889),  14  App.  Cas.  612,  59  L.  J.  P.  C.  25.  It  is  hen- 
observed  that  The  Railway  Act  in  force  in  Lower  Canada  —  The  Quebec 
Railway  Consolidation  Act  of  1880  —  is  so  framed  as  not  to  authorize 
any  damage  to  land  (whether  any  land  of  the  owner  is  taken  or  not)  by 
the  exercise  of  the  powers,  &c,  without  making  compensation.  So  that 
there  is  no  distinction  in  this  respect  between  damage  done  by  the  con- 
struction of  the  works  and  damage  done  by  the  use  of  the  railway. 

AMERICAN   NOTES. 

It  seems  that  the  doctrine  of  the  principal  case  has  been  accepted  in  this 
country  so  far  as  it  relates  to  mere  inconvenience  or  slight  annoyance,  where 
no  land  is  taken,  but  not  in  respect  to  serious  detriment  to  property  or  results 
amounting  to  a  nuisance.  Mr.  Pierce  says  (Railroads,  p.  217)  :  "The  autho- 
rises tend  to  tliis  result.  —  that  inconveniences  not  involving  any  immediate 
physical  injury,  such  as  smoke,  vibration,  and  noise  caused  by  passing  trains, 
are  not  an  independent  ground  fur  compensation." 

In  Tomlin  v.  Dubuque,  Ac.  R.  Co.,  32  Iowa,  106;  7  Am.  Rep.  176,  it  was 
held  that  a  riparian  proprietor  cannot  recover  damages  for  being  deprived  of 
access  to  a  navigable  river  by  reason  of  the  building  of  a  railroad  along  its 
banks  below  high-water  mark.  Citing  Stevens  v.  Railroad  Co.,  31  New  Jer- 
sey Law,  532:  3  Am.  Rep.  269;  Gould  v.  Hudson  R.  R.  Co.,  G  New  York, 
~)22.     It  should  be  noted,  however,  that  the  last  case  has  been  generally  dis- 


SECT.  III.  —  WHERE   ADEEMED    OR   ABRIDGED    BY    STATUTE.       665 

No.  9.  —  Hammersmith  Railway  Co.  v.  Brand.  —  Notes. 

approved  in  this  country,  and  has  been  overruled  in  Rumsey  v.  N.  )..  <\r.  /.'. 
Co.,  133  New  York,  70,  which  holds  that  the  owner  of  lands  on  the  shore  of  a 
navigable  river  lias  rights  in  land  under  water  in  front  thereof  which  may  not 
be  taken  by  the  legislature  or  otherwise  without  compensation. 

"If  a  railroad  be  built  upon  a  highway,  after  acquiring  the  public  right, 
and  the  private  property,  if  any,  in  the  street  or  t he  soil  thereof,  then  the 
owners  thereof  are  not  responsible  for  any  damages  necessarily  result  inn'  from 
the  construction  or  operation  of  the  railroad  to  private  property  adjacent  or 
near  to  the  road."  This  was  an  action  for  damage  by  the  raising  of  the  grade 
of  the  street  and  sidewalk  in  front  of  the  plaintiff's  city  lots,  (/line  v.  X.  }'., 
Spc,  R.  Co.,  101  New  York,  98;  53  Am.  Rep.  123. 

In  Hatch  v.  Vermont  Cent.  R.  Co.,  25  Vermont,  10,  it  was  held  that  the 
defendant  was  liable  for  diverting  a  natural  stream  to  the  injury  of  a  neigh- 
bouring proprietor.  Chief  Justice  Redki  eld  observed,  however:  "But  in  the 
absence  of  all  statutory  provision  to  that  effect,  no  case,  and  certainly  no 
principle,  seems  to  justify  the  subjecting  a  person,  natural  or  artificial,  in  the 
prudent  pursuit  of  his  own  lawful  business,  to  the  payment  of  consequential 
damages  to  other  persons  in  their  property  or  business.  .  .  .  One  mill,  or  one 
store  or  school,  often  injures  another.  One's  dwelling  is  undermined  or  its 
lights  darkened  or  its  prospect  obscured,  and  thus  materially  lessened  in 
value,  by  the  erection  of  other  buildings  upon  lands  of  other  proprietors. 
One  is  beset  with  noise  or  dust  or  other  inconvenience  by  the  alteration  of  a 
street,  or  more  especially  by  the  introduction  of  a  railway,  but  there  is  no 
redress  in  any  of  these  cases.  The  thing  is  lawful  in  the  railroad,  as  much  as 
in  the  other  cases  supposed."  But  in  Bellinger  v.  Ar.  1'.  Cent.  R.  Co.,  2-5  New 
York,  42,  it  was  held  that  the  defendant  was  not  liable  for  an  occasional 
flowing  of  the  plaintiff's  lands  by  means  of  its  embankment  and  bridge  across 
a  natural  stream.  To  the  same  effect,  Slatten  v.  Des  Moines  R.  Co.,  20  Iowa. 
148.  The  Bellinger  Case  is  distinguished  in  Cogswell  v.  N.  Y.,  fyc.  R.  Co..  103 
New  York,  21,  on  the  grounds  that  the  line  of  the  road  was  fixed  by  the  char- 
ter, that  the  flooding  was  an  unusual  occurrence,  and  the  evidence  was  slight 
that  it  was  caused  by  the  defendant's  structures. 

In  Struthers  v.  Dunkirk;  frc.  Rg.  Co.,  87  Penn.  St.  282,  an  action  for  dam- 
ages for  the  inconvenience  and  annoyance  caused  to  plaintiff's  premises  by 
the  operation  of  the  defendant's  railway  in  a  public  street  in  front  thereof. 
the  court  said:  "There  is  no  principle  of  law  better  settled  in  Pennsylvania 
than  that  a  common-law  action  does  not  lie  against  a  corporation  for  conse- 
quential injuries  occasioned  by  the  construction  and  operation  of  its  works." 
But  in  Chicago,  fre.  R.  Co.  v.  Hall,  00  Illinois,  42,  an  exactly  similar  case,  it 
was  held  that  there  could  be  a  recovery  for  jarring,  cinders,  smoke,  etc.,  de- 
preciating the  value  of  the  property.  This  is  also  the  doctrine  of  the  cases  of 
the  elevated  street  railways  in  the  city  of  New  York,  whether  the  fee  of  the 
streets  is  in  the  plaintiff  or  in  the  city.  Storg  v.  N.  Y.  El.  R.  Co.,  90  New 
York,  122  ;  43  Am.  Rep.  140  ;  Lahr  v.  Met.  El.  R.  Co.,  104  New  York.  268. 

In  regard  to  municipal  constructions,  essential  to  the  health  and  convenience 
of  the  citizens,  although  immediately  designed  for  private  gain,  the  rule  of  the 
principal  case  is  the  law  in  this  country.     An  instructive  recent  case  is  Daniels 


666  ACTION  (right  of). 


No.  9.  —  Hammersmith  Kailway  Co.  v.  Brand.  —  Notes. 


v.  Keokuk  Water  Works,  bT  Iowa,  54!),  holding  that  city  waterworks  .should 
not  be  enjoined  from  using  their  machinery,  whereby  the  plaintiffs'  premises 
were  subjected  to  smoke,  soot,  &c,  there  being  no  allegation  (if  detriment  to 
health  nor  of  destruction  of  property,  but  only  of  "damage,  detriment,  incon- 
venience, and  annoyance."  The  court  said:  "While  there  is  no  doubt  the 
defendant  was  organised  with  a  view  of  proving  a  pecuniary  benefit  to  the 
stockholders,  yet  this  was  not  the  only  purpose  of  its  organisation.  The  bene- 
fit to  the  public  —  that  is,  to  the  citizens  of  Keokuk  —  is  immediate  and  direct. 
.  .  .  The  injury  caused  the  plaintiffs  is  not  irreparable.  Their  inconvenience 
and  annoyance  must  yield  to  the  public  good  in  so  far  as  the  interposition  of 
equity  is  concerned." 

But  in  respect  to  railway  companies,  it  has  been  held  that  their  charters  do 
not  protect  them  from  liability  for  acts  inseparable  from  their  management 
which  amount  to  an  injurious  nuisance.  Thus  in  Cogswell  v.  N.  V..  fyc.  B. 
Co.,  103  New  York,  10;  57  Am.  Rep.  701,  it  was  held  that  an  engine-house, 
erected  by  defendant  railroad  company  adjacent  to  plaintiff's  dwelling-house, 
and  so  used  as  practically  to  deprive  plaintiff  of  the  use  of  the  house  as  a 
residence,  and  by  filling  it  with  smoke  and  dust,  and  corrupting  the  air  with 
offensive  gases,  to  make  life  therein  uncomfortable  and  unsafe,  is  a  palpable 
nuisance  for  which  an  action  of  damages  will  lie,  and  a  court  of  equity  will 
restrain  the  same.  Andrews,  J.,  said  :  "  The  principle  upon  which  the  court 
below  jiroceeded  was  that  what  the  legislature  has  authorised  the  defendant 
to  do  can  neither  be  a  public  nor  private  wrong.  .  .  .  We  place  our  judgment 
in  this  case  on  the  ground  that  the  legislature  has  not  authorised  the  wrong 
of  which  the  plaintiff  complains.  ...  It  is  no  doubt  a  settled  principle  of  the 
law  that  many  things  may  be  done  by  the  owner  of  land,  causing  consequen- 
tial damage  to  his  neighbour,  for  which  the  law  affords  no  remedy,"  as  where 
the  act  was  lawful  and  reasonable  or  the  damage  was  too  remote.  "  The  case 
before  us  belongs  to  neither  of  these  categories.  ...  It  is  undoubtedly  true 
that  there  are  cases  in  which  the  legislature  in  the  public  interest  may  author- 
ise and  legalise  the  doing  of  acts  resulting  in  consequential  injury  to  private 
property,  without  providing  compensation,  and  as  to  which  the  legislative 
sanction  may  be  pleaded  in  bar  of  any  claim  for  indemnity.  Indeed,  such  is 
the  transcendent  power  of  Parliament  that  it  is  the  settled  doctrine  of  the 
English  law  that  no  court  can  treat  that  as  a  public  or  private  wrong  which 
Parliament  has  authorised,"  citing  the  principal  case.  "  The  legislative  power 
in  tins  country  is  subject  to  restriction,  but,  nevertheless,  private  property  is 
frequently  subjected  to  injury  from  the  execution  of  public  powers  conferred 
by  statute,  for  which  there  is  no  redress.  The  case  of  consequential  injuries 
resulting  from  street  improvements  authorised  by  the  legislature  is  a  familiar 
example."  To  the  doctrine  that  a  nuisance  cannot  be  justified  by  statutory 
authority,  the  court  cite  Hill  v.  Managers,  &,'c,  4  Q.  B.  Div.  433 ;  0  App. 
Cas  93,  and  Truman  v.  By.  Co.,  25  Ch.  Div.  423;  also  Baltimore,  Sfc.  R.  Co. 
v.  Fifth  Baptist  Church,  108  United  States,  317,  a  case  of  a  similar  nuisance 
creating  a  constant  disturbance  of  religious  exercises  in  a  church,  in  which 
the  court  granted  an  injunction,  citing  Crump  v.  Lambert,  L.  P.,  3  Eq.  409. 
These  two  cases  cite  all  the  American  authorities  necessary  to  the  establish- 


SECT.  III.  —  WHERE   ADEEMED    OK    ABRIDGED    BY    STATUTE.       G67 
No.  10.  —  Bradlaugh  v.  Clarle.  —  Rule. 


merit  of  this  doctrine,  but  reference  may  usefully  be  had  to  /'inn.  11.  Co.  v. 
Angel,  41  New  Jersey  Equity.  316;  56  Am.  Rep.  1,  holding  that  a  railroad 
company,  using  a  public  street  for  a  terminal  yard,  without  having  made  com- 
pensation to  the  adjoining-  landowners,  and  thereby  causing  a  nuisance  to 
neighbouring  dwellings,  may  be  restrained  by  injunction,  although  such  use  is 
authorised  by  the  legislature  and  is  uecessarj  to  the  business.  The  court 
cite  McAndrews  v.  Collerd,  13  Vroom  (New  Jersey).  l^!t  ;.  :)ii  Am.  Rep.  508, 
to  the  proposition  "that  there  is  an  obvious  distinction  between  the  liability 
of  a  private  corporation  to  public  prosecution  for  a  legalised  nuisance,  and  its 
liability  to  a  private  action  for  damages  arising  from  such  nuisance;  that  in 
the  one  case  the  legislative  authority  is  a  protection,  and  in  the  other  it  is 
not;"  citing  Railroad  Co.  v.  Church,  10  Wall.  (U.  S.)  02,  to  the  same  effect. 

The  general  subject  is  learnedly  examined  in  the  Supreme  Court  of  New 
Jersey  in  Tinsman  v.  Be.lvid.ere,  tifc.  R.  Co.,  2  Dutch.  148;  09  Am.  Dec.  505, 
which  was  an  action  for  consequential  injury  to  a  saw-mill  right  by  the  con- 
struction of  an  embankment  (and  so  not  exactly  analogous  to  the  principal 
case),  holding  that  public  corporations  are  equally  liable  for  injuries  in- 
flicted where  the  powers  conferred  are  not  strictly  for  the  public  benefit,  and 
if  the  grant  is  a  special  franchise,  made  as  well  for  private  advantage  as  for 
public  good. 


No.  10.  — BBADLAUGH   v.   CLARKE. 

(id  l.  1883.) 

RULE. 

Where  a  penalty  is  created  by  statute,  and  nothing  is 
said  as  to  who  may  recover  it,  and  it  is  not  created  for  the 
benefit  of  a  party  grieved,  and  the  offence  is  not  against 
an  individual,  it  belongs  to  the  Crown,  and  the  Crown 
alone  can  maintain  a  suit  for  it. 

The  mere  statement  in  a  statute  that  the  penalty  is  to 
be  recovered  by  action  in  one  of  Her  Majesty's  superior 
courts,  does  not  make  it  recoverable  by  the  common 
informer. 

Bradlaugh  v.  Clarke. 

8  App   Cas.  354  (s.  c    52  L.  J.  Q.  R.  D.  505). 

Appeal  by  the  defendant  from  two  orders  of  the  Court  of  Appeal 
(Bramwell,  Bago  allay,  and  Lush,  L.  JJ.)  7  Q.  B.  P.  38,  61,  02. 
The  pleadings  are  fully  set  out  in  the  report  of  the  case  below. 


668  ACTION  (eight  of). 


No.  10.  —  Bradlaugh  v.  Clarke. 


The  only  questions  raised  by  this  appeal  were  whether  the 
plaintiff,  as  a  common  informer,  was  entitled  to  sue  for  the  penalty 
imposed  by  The  Parliamentary  Oaths  Act,  1S66  (29  &  30  Vict. 
c.  19)  §  5,  —  it  being  admitted  by  the  pleadings  that  the  defendant 
had  voted  as  a  member  of  the  House  of  Commons  and  sat  during 
a  debate,  after  the  Speaker  had  been  chosen,  without  having  made 
and  subscribed  the  oath  by  that  Act  appointed,  —  and  whether  the 
courts  below  had  power  to  order  costs  to  be  paid  by  the  defendant 
to  the  plaintiff,  and  if  so  whether  the  power  had  been  rightly 
exercised.  The  question  mainly  discussed  in  the  courts  below, 
whether  the  defendant  was  entitled  to  affirm,  was  not  now  raised, 
the  defendant  having  (as  he  alleged  during  the  argument)  under- 
taken not  to  raise  it. 

March  5.     The  appellant  in  person  :  — 

This  action  cannot  be  maintained  by  the  plaintiff.  All  penalties 
imposed  by  statute  belong  to  the  Crown  alone,  unless  given  in 
precise  terms  to  an  individual,  —  e.g.,  to  the  party  aggrieved  or  "  to 
him  or  them  who  shall  sue  for  the  same."  Tomlin's  Law  Diet. ; 
Jacob's  Law  Diet.  "Penal  Laws;"  16  Vin.  Abr.  p.  566,  Prerog. 
t.  2  §  21;  Com.  Dig.  Forfeiture  (C);  R.  v.  Malland,  2  Str.  828; 
R.  v.  Hymen,  7  T.  R  536.  The  Crown  cannot  be  deprived  of  its 
right  to  a  penalty  by  words  of  implication,  but  only  by  express 
words  of  enactment.  Where  the  method  of  recovery  is  left  in 
doubt,  the  Crown,  and  none  other,  can  sue.  Penal  statutes  must  be 
construed  strictly  as  between  an  informer  and  a  defendant  and 
nothing  extended  against  the  defendant.  The  previous  Act  (1 
Geo.  I.  st.  2  c.  13  §  17)  imposed  the  penalty  "to  be  recovered  by 
him  or  them  that  shall  sue  for  the  same."  This  Act  was  repealed 
by  the  Act  of  1866,  and  those  words  omitted  purposely;  but 
whether  purposely  or  not,  the  effect  is  the  same.  The  Crown  could 
bring  every  civil  suit  at  its  pleasure  in  any  court,  —  any  informa- 
tion for  debt,  —  though  the  Exchequer  is  the  natural  court.  The 
words  "  by  action  "  may  and  here  must  include  "  information  by 
the  Crown ; "  and  an  information  lies  in  all  the  superior  courts. 
4  Com.  Dig.  Information  A.  3,  p.  559;  A.  1,  p.  557,  and  the 
authorities  there  cited.  See  also  R.  v.  Clark,'!  Cowp.  610;  and 
Chitty's  Prerog.  Crown,  c.  12  p.  244,  and  the  authorities  there 
cited.  31  Eliz.  c.  5  §  5,  which  is  limited  to  suits  by  the  Crown, 
uses  the  word  "  action  "  advisedly.  Therefore  the  Crown  can  sue  ; 
and  if  the  words  include  the  Crown,  they  do  not  include  a  common 


SECT.  III.  —  WHERE    ADEEMED    OR    ABRIDGED    BY    STATUTE.       G69 
No.  10.  —  Bradlaugh  v.  Clarke. 

informer.  The  king,  by  his  prerogative,  may  sue  in  what  court 
he  pleases  (6   Com.   Dig.  Prerog.  D  85),  and  cannot  be  deprived  of 

his  privileges  but  by  express  and  clear  words;  16  Yin.  Abr. 
Prerog.  T.  2  §§  28,  33,  Z.  4,  p.  572,  citing  11  Rep.  74  b,  75  a  ;  Mag- 
dalen College  Case;  6  Bac.  Abr.  Prerog.  E.  §§  5,  7,  p.  472.  See 
also  9  Geo.  III.  c.  16  §  1  ;  18  &  19  Vict.  c.  90  §  1  and  28  &  29  Yict.  c. 
104,  as  to  "  actions  "  by  the  Crown.  But  even  if  a  common  informer 
could  sue  a  peer,  the  judgment  appealed  against  is  wrong,  because 
the  words  "a  like  penalty"  mean  only  a  penalty  of  a  like  amount, 
and  do  not  apply  to  the  mode  of  recovery.  Lastly,  the  courts 
below  had  no  power  to  give  the  plaintiff  costs.  A  common  in- 
former has  no  right  to  costs  unless  given  by  statute,  and  these 
costs  are  not  given  by  the  statute.'  The  right  to  the  penalty  does 
not  vest  till  the  action  is  brought,  and  there  are  therefore  no 
damages  for  detention,  and  consequently  no  costs ;  Jacob's  Law 
Diet.  "  Costs,"  and  Gray  on  Costs,  p.  6,  and  the  authorities  there 
cited:  This  was  so  before  the  Judicature  Acts,  and  they  have  not 
altered  the  law  in  this  respect.  Even  if  the  court  had  a  discretion, 
it  is  a  judicial  discretion,  and  not  absolute;  Foster  v.  Great  Western 
Railway  Company,  8  Q.  B.  D.  25,  30 ;  reversed,  p.  515,  C.  A. 

[The  Lord  Chancellor  referred  to  Order  lv. ;  Garnett  v.  Brad- 
ley, 3  App.  Cas.  944;  and  Myers  v.  Defries,5  Ex.  D.  180,  184;  and 
informed  the  respondent's  counsel  that  the  House  did  not  require 
any  argument  from  them  on  the  question  of  costs.] 

Sir  H.  Giffard,  Q.  C.  (Kydd  with  him),  for  the  respondent:  — 

The  judgment  below  was  right.  The  words  "to  be  recovered  by 
him  or  them  that  shall  sue  for  the  same  "  were  omitted  from  the 
Act  of  18(36,  not  accidentally,  but  because  the  other  words  pro- 
vided for  the  same  effect.  It  would  be  strange  if  the  Crown  was 
meant  to  be  the  only  plaintiff,  since  the  words  ordinarily  used 
when  the  Crown  is  intended  are  omitted.  The  word  "action" 
admittedly  includes  a  suit  by  a  common  informer,  whether  it  also 
includes  information  by  Crown  may  be  doubtful.  But  for  the 
penalty,  the  offence  would  be  an  indictable  misdemeanour.  It  is 
absurd  to  suppose  that  the  legislature  meant  to  take  away  the 
consequences  of  a  misdemeanour  and  yet  give  the  penalty  only  to 
the  Crown. 

March  6.     The  appellant  replied. 

The  House  took  time  for  consideration. 

April  9.     Earl  of  Selborne,  L  C.     My  Lords,  the  single  ques- 


670  ACTION  (right  of). 


No.  10.  —  Bradlaugh  v.  Clarke. 


tion  to  be  decided  upon  this  appeal  is,  whether  a  common  informer 
can  sue  for  the  penalties  imposed  by  the  statute  29  &  30  Vict- 
c.  19,  upon  a  member  of  the  House  of  Commons  sitting  and  voting. 
in  that  House  without  having  taken  the  oath  prescribed  by  that 
Act.  The  words  of  the  material  clause  (§  5)  are  these  :  "  If  any 
member  of  the  House  of  Peers  votes,  by  himself  or  his  proxy,  in  the-. 
House  of  Peers,  or  sits  as  a  Peer  during  any  debate  in  the  said 
House,  without  having  made  and  subscribed  the  oath  hereby- 
appointed,  he  shall  for  every  such  offence  be  subject  to  a  penalty 
of  £500,  to  be  recovered  by  action  in  one  of  Her  Majesty's  supe- 
rior courts  at  Westminster  ;  and  if  any  member  of  the  House  of 
Commons  votes  as  such  in  the  said  House,  or  sits  during  any 
debate  after  the  Speaker  has  been  chosen,  without  having  made 
and  subscribed  the  oath  hereby  appointed,  he  shall  be  subject  to> 
a  like  penalty  for  every  such  offence  ;  and,  in  addition  to  such 
penalty,  his  seat  shall  be  vacated  in  the  same  manner  as  if  he 
were  dead." 

It  was  argued  that  the  words  "  a  like  penalty"  meant  only  a 
penalty  of  like  amount,  and  not  a  penalty  of  like  amount  to  be 
recovered  in  like  manner.  With  that  view  I  cannot  agree ;  and 
in  all  that  I  say  I  shall  assume  that  there  is  no  difference  as  to- 
the  right  of  action  for  the  recovery  of  the  penalty  between  the 
case  of  a  member  of  the  House  of  Peers  and  that  of  a  member  of 
the  House  of  Commons. 

All  previous  enactments  relating  to  the  oaths  to  be  taken  by 
Peers  and  members  of  the  House  of  Commons  (beginning  with 
30  Car.  II.  st.  2  c.  1,  and  ending  with  23  &  24  Vict.  c.  63)  were 
repealed  by  this  statute,  which  is,  therefore  (except  as  to  the  form 
of  the  oath,  which  was  altered  by  The  Promissory  Oaths  Act,  1868,, 
§§  2, 14),  the  only  law  now  in  force  on  that  subject.  The  question- 
was  considered  and  determined  in  the  Court  of  Appeal  (where 
alone  it  was  raised  and  argued)  without  reference  to  any  of  the 
repealed  statutes,  in  the  same  way  as  if  there  had  been  no  prior 
legislation  upon  the  subject.  It  will  be  convenient  first  to  exam- 
ine, from  the  same  point  of  view,  the  reasons  assigned  by  the 
Court  of  Appeal  for  their  judgment  in  the  respondent's  favour. 

It  was  acknowledged,  as  an  incontestable  proposition  of  law., 
that  "  where  a  penalty  is  created  by  statute,  and  nothing  is  said 
as  to  who  may  recover  it,  and  it  is  not  created  for  the  benefit  of 
a  party  grieved,  and  the  offence  is  not  against  an  individual,  it 


SECT.  III.  —  WHERE    ADEEMED    OR   ABRIDGED    BY   STATUTE.       671 
No.  10.  —  Bradlaugh  v.  Clarke. 

belongs  to  the  Crown,  and  the  Crown  alone  can  maintain  a  suit 
for  it."  Lord  Justice  Bramwell  referred  to  Comyns's  Digest, 
"Forfeiture"  (C),  as  correctly  laying  down  that  doctrine.  If  it 
were  necessary,  many  other  authorities  to  the  same  effect  might 
he  mentioned.  It  rests  on  a  very  plain  and  clear  principle.  No 
man  can  sue  for  that  in  which  he  has  no  interest;  ana  a  common 
informer  can  have  no  interest  in  a  penalty  of  this  nature,  unless 
it  is  expressly,  or  by  some  sufficient  implication,  given  to  him  by 
statute.  The  Crown,  and  the  Crown  alone,  is  charged  generally 
with  the  execution  and  enforcement  of  penal  laws  enacted  by 
public  statutes  for  the  public  good,  and  is  interested,  jure  imblico, 
in  all  penalties  imposed  by  such  statutes,  and  therefore  may  sue 
for  them  in  due  course  of  law,  where  no  provision  is  made  to  the 
contrary.  The  onus  is  upon  a  common  informer  to  show  that 
the  statute  has  conferred  upon  him  a  right  of  action  to  recover 
the  particular  penalty  which  he  claims. 

I  do  not  agree  with  the  argument  of  the  appellant,  that  for  such 
a  purpose  express  words  are  necessary.  If  an  intention  to  confer 
such  a  right  ought  to  be  implied  from  what  the  legislature  has 
said,  upon  any  sound  principle  of  construction,  that  implication 
cannot,  in  my  opinion,  be  excluded  by  reasons  derived  from  the 
special  prerogatives  of  the  Crown. 

Express  words,  giving  a  right  of  action  to  any  one  who  may  sue 
for  the  penalty,  are  certainly  not  found  in  this  statute.  Nor  is 
there  anything  from  which,  upon  ordinary  principles  of  construc- 
tion, such  a  right  of  action  can  be  implied,  unless  the  words,  "  to 
be  recovered  by  action  in  one  of  Her  Majesty's  superior  courts  at 
Westminster  "  are,  wholly  or  in  part,  inapplicable  to  the  Crown. 

It  appears  by  the  report  of  the  opinions  of  the  learned  Judges 
in  the  Court  of  Appeal  that  they  were  disposed  to  think  (though 
they  did  not  decide  the  point,  and  Lord  Justice  Bramwell  ex- 
pressed himself  more  doubtfully  upon  it  than  Lord  Justice  Lush) 
that  if  the  words  had  simply  been  "  by  action,"  the  penalty  would 
have  belonged  to  the  Crown  alone,  "  because  the  word  '  action  ' 
is  a  generic  term,  and  may  be  used  as  a  general  term."  But  they 
thought  it  proved  by  the  context,  "  in  one  of  Her  Majesty's 
superior  courts  at  Westminster,"  that  the  word  "  action  "  was  here 
used  "  in  the  popular  sense  of  a  proceeding  by  writ,"  because 
the  option  of  suing  in  any  one  of  those  courts  was  given  ;  and 
they  assented  to  the  contention  of  the  plaintiffs  counsel  that  the 


672  ACTION  (right  of). 


No.  10.  —  Bradlaugli  v.  Clarke. 


sovereign  could  only  sue  by  information  in  the  Court  of  Exchequer, 
and  could  not  sue  in  the  Court  of  Queen's  Bench  or  in  the  Court 
of  Common  Pleas  for  such  a  penalty.  Lord  Justice  Bramwell 
referred  to  a  note  by  Mr.  Hammond,  the  editor  of  the  5th  edition 
of  Comyns's  Digest  (published  in  1822),  to  the  passage  "  For- 
feiture "  (Cj,  which  speaks  of  the  right  of  the  Crown  to  recover 
unappropriated  penalties.  That  note  rests  upon  the  case  of  Rex 
v.  Mallancl,  2  Str.  828,  and  is  in  these  words:  "  Where  the  statute 
does  not  express  how  it  shall  be  recovered,  it  must  be  sued  for  in 
the  Exchequer."  The  learned  Judge  quoted  the  terms  of  the 
report  of  Rex  v.  Mallancl,  supra,  and  of  the  reporter's  marginal 
note  to  that  case  (in  which,  however,  it  is  not  said  that  the  Crown 
could  not  sue  for  an  unappropriated  penalty  elsewhere  than  in  the 
Exchequer,  but  only  that  such  a  penalty  "  was  suable  for  in  a  Court 
of  Revenue,  and  not  by  indictment ") ;  and  he  added,  "  On  the 
principle  established  by  these  authorities  it  is  argued  that,  as  this 
penalty  may  be  recovered  by  action  in  any  one  of  Her  Majesty's 
superior  courts  at  Westminster,  it  is  not  the  Crown  who  is  to  sue 
for  the  penalty,  but  the  common  informer,  including  the  plaintiff. 
By  that  reasoning  I  own  that  I  am  convinced ;  and  therefore  I 
think  this  action  maintainable  by  the  plaintiff."  In  the  sequel  of 
his  judgment,  the  same  very  learned  Judge  made  it  plain  that  his 
conclusion  was,  not  that  either  the  Crown  or  a  common  informer 
might  sue,  but  that  the  Crown  could  not  sue  for  this  penalty  ; 
and  therefore  that,  unless  the  common  informer  could  sue,  the 
legislature  would  have  "created  a  penalty  not  recoverable  by  any- 
body." Lord  Justice  Lush  expressed  himself  very  much  to  the 
same  effect,  and  Lord  Justice  Baggallay  concurred. 

The  argument  at  your  Lordships'  bar  has  satisfied  me  that  the 
ground  on  which  the  judgment  appealed  from  was  thus  rested 
cannot  be  maintained,  and  that  (unless  the  word  "action"  is 
inappropriate  with  respect  to  a  suit  by  the  Crown)  there  would 
have  been  in  1866  no  legal  impediment  to  a  suit  for  this  penalty 
by  the  Crown  in  the  Court  of  Queen's  Bench  or  the  Court  of 
Common  Pleas;  and  that  Mr.  Hammond's  note  to  Comyns's  Digest, 
"  Forfeiture  "  (C),  if  its  meaning  really  is  that  the  Crown  could 
not  sue  for  a  penalty  elsewdiere  than  in  the  Court  of  Exchequer,  is 
incorrect.  It  has  been  repeatedly  laid  down  by  high  authority,  as 
a  rule  of  the  common  law,  that  the  king,  by  his  prerogative,  may 
sue  in  what  court  he  pleases.     Magdalen  College  Case,  11  Co.  Rep. 


SECT.  III.  —  WHERE   ADEEMED   OR   ABRIDGED    BY    STATUTE.       < >  t  3 
No.  10.  —  Bradlaugh  v.  Clarke. 

75  a;  Brownloe  v.  Mitchell,  1  Roll.  Eep.  290;  Fitzherbert's  Natura 
Brevium,  7  B  &  32  E;    tfw^ess  v.  W^afe,  1  W.  Bl.  131,  132; 

and  see  Bacon's  Abridgment,  "  Prerogative,"  ed.  1832,  vol.  vi. 
p.  472,  and  Chitty  on  Prerogative,  p.  244.  Fitzherbert  (32  E), 
when  speaking  of  quare  impedit,  says,  "The  king  may  sue  this 
writ  and  every  writ  in  what  court  he  will."  In  Burgess  v.  Wheate, 
supra,  Sir  Thomas  Clarke,  Master  of  the  Rolls,  meeting  the  objec- 
tion that  the  Court  of  Chancery  was  not  a  proper  court  for  the 
Crown  "  to  sue  in  "  (for  an  escheat),  "  but  it  should  have  been  a 
Court  of  Revenue,"  said,  "  Though  the  Crown  may  insist  on  being 
sued  in  its  own  proper  court,  yet  it  may  sue  in  what  court  it 
pleases,"  citing  Finch,  84  (1  William  Blackstone,  131,  132).  In 
Rex  v.  Clark,  2  Cowp.  610,  and  Rex  v.  Hymen,  7  T.  R.  53G,  the 
Crown  did  sue  for  and  recover  in  the  Court  of  King's  Bench,  pen- 
alties incurred  under  two  Revenue  Acts,  —  8  Geo.  I.  c.  18  §§  23 
&  25,  and  24  Geo.  III.  st.  2  c.  47  §  38,— both  which  expressly- 
enabled  a  common  informer  to  sue.  and  only  mentioned  the  Crown 
as  entitled  to  a  moiety  of  the  penalties  and  forfeitures  incurred. 
As  to  the  manner  of  suit,  the  earlier  of  those  Acts  provided  that 
such  penalties  and  forfeitures  "should  and  might  be  prosecuted  and 
determined  by  bill,  plaint,  or  information  in  any  of  His  Majesty's 
courts  of  record  at  Westminster,  or  in  the  Court  of  Exchequer  at 
Edinburgh,  respectively  ; "  the  later,  that  "all  the  same  penal- 
ties and  forfeitures  should  and  might  be  prosecuted  and  sued  for, 
and  the  causes  and  controversies  arising  thereupon  tried,  heard, 
and  determined  in  any  of  His  Majesty's  courts  of  record  at 
Westminster,  or  in  the  Court  of  Exchequer  at  Edinburgh,  respec- 
tively." In  the  latter  of  those  cases  (Rex  v.  Hymen,  supra),  after 
conviction  "  a  doubt  arose  whether  the  king  could  sue  for  the 
whole  penalty,  and,  if  he  could,  whether  it  should  not  be  by  a 
prosecution  in  the  Exchequer."  The  counsel  for  the  prosecution 
on  a  later  day  referred  to  Rex  v.  Clark,  supra,  and  stated  "that 
there  were  many  precedents  in  the  Crown  Office  of  similar  pro- 
ceedings." The  court  was  satisfied  with  those  authorities,  and 
ordered  the  defendant  (for  whom  Mr.  Erskine  was  counsel)  to 
pay  the  whole  penalty. 

These  authorities  appear  to  me  to  prove  that  a  suit  to  recover 

such  a  penalty  as  that  incurred  by  the  appellant  might,  in  and  after 

1866,  have  been  brought  by  the  Crown  in  any  one  of  the  Superior 

Courts  at  Westminster,  and  consequently  that  the  option  given  to 

vol.  i.  —  43 


674  ACTION  (eight  of). 


No.  10.  —  Bradlaugh  v.  Clarke. 


sue  in  any  one  of  those  courts  cannot  be  a  sufficient  reason  for 
letting  in  a  common  informer  under  a  statute  by  which  a  right  of 
action  is  not  otherwise  given  to  him.  I  am  also  satisfied,  after  full 
consideration,  that  the  word  "  action "  is  (as  Lord  Justice  Lush 
said)  a  generic  term,  inclusive,  in  its  proper  legal  sense,  of  suits  by 
the  Crown,  and,  therefore,  not  furnishing  any  sufficient  ground 
for  implying  a  right  of  action  in  a  common  informer.  That  it  is 
used  as  nomen  generalissimum  in  this  particular  statute  seems 
probable,  from  the  fact  that  it  stands  there  alone,  without  having 
superadded  to  it  a  number  of  other  technical  terms,  which  are 
usually  found  associated  with  it  in  earlier  statutes.  Lord  Coke 
(Coke  Littleton,  284  b,  285  a,  and  Eeports,  pt.  8,  151  a)  adopts 
Bracton's  definition  of  an  "  action  " :  "Actio  nihil  aliud  est  quam  jus 
prosequcndi  in  judicio  quod  alicui  debetur  ;  also  giving  (in  the 
former  of  those  places)  its  equivalent  in  Norman-French : 
Action  n'est  aider  chose  que  loyall  demande  de  son  droit."  In 
the  third  Institute  (p.  136)  he  says:  "The  king  may  have  an 
action  for  such  wrong  as  is  done  to  himself,  and  whereof  none 
other  can  have  any  action  but  the  king,  without  being  apprised 
by  indictment,  presentment,  or  other  matter  of  record,  as  a  quare 
impedit,  quare  incumbravit,  a  writ  of  attaint,  of  debt,  detinue  of 
ward,  escheat,  scire  facias  pur  repealer  patent,"  &c.  So  also  Fitz- 
herbert  (Fitzherbert,  Natura  Brevium,  page  200,  I.) :  "  The  king 
shall  have  an  action  of  trespass."  In  Comyns's  Digest,  "Action" 
(B)  the  term  is  applied  to  various  rights  of  suit  by  the  Crown,  writ 
of  right,  writ  of  escheat,  and  other  civil  remedies,  including  debt 
and  trespass;  and  in  "  Action"  (D)  it  is  extended  even  to placita 
coronas,  or  criminal  proceedings;  as  it  is  also  in  Bacon's  Abridg- 
ment ("Actions  in  general,"  A).  In  the  same  Abridgment 
("  Prerogative,"  F,  7),  it  is  said:  "The  king,  though  the  head  and 
chief  of  his  kingdom,  may  redress  any  injuries  he  may  receive 
from  his  subjects  by  such  usual  common-law  actions  as  are  con- 
sistent with  the  royal  prerogative  and  dignity;"  and  in  Chitty, 
"  Prerogative,"  p.  245 :  "  The  general  rule  is,  that  the  king  may 
waive  his  prerogative  remedies,  and  adopt  such  as  are  assigned  to 
his  subjects ;  he  may  maintain  the  usual  common-law  actions,  as 
trespass  quare  clausum  /regit,  or  for  taking  his  goods." 

These  statements  of  the  law  are  in  accordance  with  the  language 
of  the  statute,  31  Eliz.  c.  5,  "Concerning  Informers"  (§  5),  which 
speaks  of   "Actions,  suits,  bills,  indictments,  and  informations," 


SECT.  III.  —  WHERE    ADEEMED    OH    ABRIDGED    BY    STATUTE.       G75 

No.  10.  —  Bradlaugh  v.  Clarke. 

with  express  reference  to  "  any  forfeiture  upon  any  statute  penal, 
made  or  to  be  made,  whereby  the  forfeiture  is  or  shall  be  limited 
to  the  queen,  her  heirs,  or  successors  only."  Considering  the 
nature  of  the  subject  with  which  that  statute  deals,  I  am  not  sur- 
prised at  the  reference  which  the  appellant  made  to  it  in  his 
argument  at  your  Lordships'  bar. 

The  conclusion  to  which  I  have  been  brought  is,  that  there  is 
no  difficulty  in  applying  any  part  of  the  language  of  the  clause  in 
the  Act  of  1866,  which  creates  the  penalty  sued  for  in  the  present 
action,  to  a  suit  by  the  Crown ;  and,  therefore,  that  no  part  of  that 
language  affords  any  sufficient  ground  for  implying  an  intention 
on  the  part  of  the  legislature  to  give  a  common  informer,  as  well 
as  the  Crown,  a  right  of  action  for  that  penalty. 

One  of  my  noble  and  learned  friends  is,  however,  as  I  under- 
stand, 'of  opinion,  that  although  the  words  of  the  Act  of  1866 
might  not  by  themselves  afford  any  sufficient  ground  for  such  an 
implication,  it  may,  nevertheless,  be  derived  (according  to  those 
principles  applicable  to  the  construction  of  statutes,  which  are 
stated  in  Heydons  Case,  3  Co.  Eep.  7  b,  and  in  Hawkins  v.  Gather- 
cole,  6  D.  M.  &  G.  1)  from  a  comparison  of  the  policy  and  provi- 
sions of  that  Act  with  those  of  the  former  enactments  in  pari 
materia,  which  were  thereby  repealed. 

In  the  application  of  those  principles  of  construction  it  is  essen- 
tially needful  to  remember  that  the  office  of  a  Court  of  Justice  is 
to  interpret  the  law,  and  not  to  make  it.  In  ancient  times  the 
provinces  of  the  Judge  and  of  the  legislator  were  not  unfrequently 
confounded  under  colour  of  those  principles.  They  afford  useful 
aids  for  the  resolution  of  doubts,  when  (as  in  Hawkins  v.  Gather- 
cole,  6  D.  M.  &  G.  1)  the  question  is  how  far,  if  at  all,  an  earlier 
statute  has  been  indirectly  repealed  or  overridden  by  a  later,  which 
does  not  expressly  mention  or  refer  to  it;  or  when  difficulties 
arise  out  of  the  apparently  conflicting  language  of  several  laws 
concurrently  in  operation  ;  or  when  the  words  of  a  statute  are 
susceptible  of  divers  constructions,  one  of  which  may  be  recom- 
mended and  another  repelled  by  considerations  derived  from  the 
known  policy  of  the  law,  or  from  general  reason  and  justice.  In 
the  present  case  there  is  no  question  as  to  the  total  and  absolute 
repeal  of  the  former  enactments ;  and  if  the  wrord  "  action "  has 
really  that  sense  which'  I  suppose  it  to  have,  there  appears  tn  be 
no  uncertainty,  or  room  for  doubt,  as  to  the  proper  meaning  of  the 


676  ACTION   (right  of). 


No.  10.  —  Bradlaugh  v.  Clarke. 


words  which  the  legislature  has  used.  They  mean  that  the 
penalty  is  to  be  recovered  by  proceeding  in  due  coarse  of  law  in 
any  one  of  the  superior  courts  at  Westminstei  ;  that,  and  nothing 
else.  Their  silence  as  to  the  person  who  is  to  recover  the  penalty 
creates  no  more  difficulty  or  uncertainty  than  if  the  statute  had 
simply  imposed  the  penalty  and  had  said  nothing  at  all  about  the 
manner  of  recovering  it.  It  must  be  recovered  by  him  to  whom 
it  is  due;  and  it  is  due  to  the  Crown,  and  not  to  the  informer, 
unless  there  is  enough  in  the  statute  to  show  affirmatively,  by 
words  pointing  to  the  informer,  or  negatively  by  words  exclusive 
of  the  Crown,  that  the  informer  was  meant  to  have  it.  I  think  it 
would  be  legislation,  and  not  interpretation,  to  import  into  this 
Act,  by  any  inference  from  the  repealed  enactments,  provisions  in 
favour  of  a  common  informer  which  the  Act  does  not  itself 
contain. 

The  intention  of  the  repealed  statutes,  in  this  respect,  did  not 
depend  upon  any  uncertain  implication.  Of  the  two  earliest,  one 
(30  Car.  II.  st.  2),  which  imposed  the  oath  against  transubstantia- 
tion,  applied  to  members  of  the  two  Houses  of  Parliament  only ; 
the  other  (13  Wm.  III.  c.  6),  which  imposed  the  first  oath  of  abjura- 
tion, was  applicable  also  (as  was  the  third,  1  Geo.  I.  st.  2  c.  13, 
imposing  a  like  oath,  and  also  an  oath  against  the  deposing  power 
of  the  Pope)  to  all  holders  of  public  offices  of  every  kind,  and 
members  of  the  universities  and  learned  professions,  &c,  through- 
out the  kingdom.  All  those  Acts  placed  the  person  who  omitted 
to  take  the  oaths  prescribed  by  them  under  heavy  civil  disabilities  ; 
and  the  two  earlier  provided,  especially,  that  every  peer  or  member 
of  the  House  of  Commons  offending  against  them  should  be 
"deemed  and  adjudged  a  popish  recusant  convict,"  and  should  he 
disabled  from  sitting  or  voting  in  either  House  of  Parliament,  and 
in  other  respects  practically  outlawed.  By  the  Act  of  Charles  II. 
the  seat  of  an  offending  member  of  the  House  of  Commons  was 
also  declared  void.  The  pecuniary  penalty  of  £500,  imposed  by 
the  two  earlier  of  those  Acts  on  members  of  either  House,  was  "  for 
every  wilful  offence"  against  the  Act;  and  was  "to  lie  recovered 
and  received  by  him  or  them  that  should  sue  for  the  same,  and  to 
be  prosecuted  by  any  action  of  debt,  suit,  bill,  plaint,  or  informa- 
tion in  any  of  His  Majesty's  courts  at  Westminster."  The  sever- 
ity of  those  Acts  was  mitigated  by  1  Geo.'  I.  st.  2  c.  13  §  17,  to  this 
extent  only,  that  offenders  against  that  statute   were  no  longer 


SECT.  111. — WHERE   ADEEMED    OR    ABRIDGED    BY    STATUTE.        677 
No.  10.  —  Bradlaugh  v.  Clarke. 

made  "popish  recusants  convict,"  and  (singularly  enough)  the 
incapacity  to  sit  or  vote  in  Parliament  was  omitted.  The  pecu- 
niary penalty  of  £500  was  no  longer  imposed  "for  every  wilful 
offence  against  the  Act,"  but  (apparently,  though  the  point  may 
admit  of  doubt)  only  once.  The  other  disabilities  and  incapacities 
were  substantially  the  same  as  under  the  Act  of  William  III.,  and 
the  £500  penalty  was  recoverable  "by  him  or  them  that  should  sue 
for  the  same,  to  be  prosecuted  by  action  of  debt,  suit,  bill,  plaint, 
or  information,  in  any  of  His  Majesty's  courts  at  Westminster, 
.  .  .  and  by  way  of  summary  complaint  before  the  Court  of  Ses- 
sions, or  prosecution  before  the  Court  of  Justiciary  in  Scotland." 

By  all  these  three  Acts,  members  of  either  House  of  Parliament 
were  prohibited,  not  only  from  voting,  but  also  from  sitting  in 
Parliament  during  any  debate  (in  the  House  of  Lords  generally,  in 
the  House  of  Commons  after  the  choice  of  a  Speaker),  and  by  the 
Act  of  Charles  II.  the  disabilities  and  the  penalty  were  made  co- 
extensive with  the  prohibition.  But  in  the  Acts  of  William  III. 
and  George  I.  (for  whatever  reason)  the  only  offence  for  which  the 
disabilities  and  the  pecuniary  penalty  were  imposed  was  that  of 
voting  without  having  taken  the  prescribed  oath.  It  may  be  that, 
under  these  two  Acts,  a  member  of  Parliament  who  had  not  taken 
the  oath,  if  he  sat  in  either  House  during  debate  (though  he  did 
not  vote)  might  have  been  prosecuted  for  a  misdemeanour;  but  he 
certainly  did  not  thereby  incur  the  £500  penalty,  and  he  could 
not  have  been  sued  for  that  offence  by  a  common  informer. 

All  the  later  enactments  mentioned  in  the  schedule  to  the  Act 
of  1866  had  for  their  object  to  change  either  the  matter  or  the 
form  of  the  prescribed  oaths,  sometimes  generally,  sometimes  as 
to  particular  classes  of  persons  ;  and  they  are  all  thereby  repealed, 
so  far  (and  so  far  only)  as  they  relate  to  oaths  required  to  be  taken 
by  members  of  the  two  Houses  of  Parliament.  Most  of  them 
extended  also  to  other  holders  of  offices,  &c,  for  the  time  being 
required  by  law  to  take  the  prescribed  oaths,  as  to  whom  the  Acl 
of  1866  did  not  repeal  them.  In  those  later  Acts  there  was 
nothing  new  as  to  penalties ;  the  provisions  on  that  subject  of 
1  Geo.  I.  st.  2  c  13  were  applied  by  them  to  any  neglect  to  take 
the  altered  oaths,  in  terms  of  reference  which  it  is  sufficient  to 
quote  from  21  &  22  Vict.  c.  48.  That  Act  substituted  for  the 
oaths  of  allegiance,  supremacy,  and  abjuration,  in  all  cases  in 
which  they  were  previously  by  law  required,  a  new  oath  to   the 


678  ACTION  (eight  of). 


No.  10. — Bradlaugh  v.  Clarke. 


following  effect,  —  viz.,  (1)  that  the  person  taking  it  would  bear 
true  allegiance  to  the  queen ;  (2)  that  he  would  do  his  utmost  to 
disclose  all  conspiracies,  &c. ;  (3)  that  he  would  maintain  to  the 
utmost  of  his  power  the  succession  to  the  Crown,  as  settled  by- 
law ;  (-1)  that  he  disowned  all  obedience  or  allegiance  to  all  pre- 
tenders; and  (5)  that  he  rejected  all  claims  to  jurisdiction,  &c, 
by  foreign  princes  or  others  within  this  realm.  The  neglect  to 
take  that  oath  was  to  be  "  attended  with  the  like  disabilities,  in- 
capacities, penalties,  liabilities,  and  consequences  as  then  "  (i.e.,  in 
1858)  "  by  law  provided  in  the  case  of  refusal,  neglect,  or  omission 
to  take,  or  take  and  subscribe  respectively,  the  oaths  of  allegiance, 
supremacy,  and  abjuration ;  and  all  provisions  then  in  force  were 
to  be  construed  and  take  effect  accordingly."  This  is  the  latest  of 
the  repealed  enactments  in  which  penalties  are  mentioned. 

If  it  were  proper  on  this  occasion  for  your  Lordships  to  enter 
into  considerations  of  policy  not  apparent  upon  the  face  of  the 
Act  of  1866,  which  might  possibly  be  collected  or  inferred  from 
the  prior  enactments  thereby  repealed,  I  should,  for  my  own  part, 
be  unable  to  found  upon  the  provisions  of  those  prior  enactments 
any  safe  or  satisfactory  conclusion  that  the  reasons  which  may 
have  led  the  legislature  in  1677,  1701,  and  1714  to  make  the 
pecuniary  penalties  then  imposed  recoverable  by  popular  actions 
(i.e.,  by  a  common  informer)  were  also  applicable  to  the  legisla- 
tion of  1866.  It  is  obvious  that  the  provisions  (in  this  and  some 
other  respects)  of  the  Acts  of  Charles  II.,  William  IU.,  and 
George  I.  may  have  been,  and  probably  were,  influenced  by  con- 
siderations, some  of  which  have  now  lost  their  force,  —  in  the  first 
of  those  reigns,  by  the  want  of  confidence  then  felt  in  the  Crown 
upon  the  particular  subject  to  which  the  oath  then  imposed 
related ;  and  in  the  two  latter,  by  the  serious  danger  to  the  peace 
of  the  realm  from  the  claims  and  designs  of  pretenders.  What 
was  done  under  such  influences  might  remain,  after  those  parti- 
cular considerations  had  ceased  to  operate,  till  the  whole  law  on 
the  subject  was  deliberately  reviewed  by  the  legislature  ;  but  on 
such  a  review  it  might,  not  improbably,  be  changed.  It  is  also, 
to  say  the  least,  reasonably  probable  that  motives  might  exist  for 
giving  a  right  of  action  to  a  common  informer,  when  the  object 
was  to  secure  the  taking  of  the  prescribed  oaths,  not  only  by 
members  of  the  two  Houses  of  Parliament,  but  by  many  official 
and  other  persons    dispersed   throughout   the   whole    community. 


SECT.  III.  —  WHERE    ADEEMED   OH    ABRIDGED    BY    STATUTE.       679 


No.  10.  —  Bradlaugh  v.  Clarke. 


which  might  not  have  the  same  force  when  the  oaths  to  be  taken 
by  the  members  of  the  two  Houses  of  Parliament  were  (as  they 
were  in  the  Act  of  1866)  alone  in  view.  1  also  believe  it  to  he 
true,  as  was  stated  at  the  bar,  that  it  was  much  more  generally 
the  policy  of  the  legislature  in  former  than  in  recent  times  to 
give  penalties  imposed  by  public  statutes  to  common  informers. 

When  the  particular  provisions  of  the  Act  of  1866  are  examined, 
the  danger  of  importing  into  them  for  this  purpose  a  policy 
supposed  to  be  gathered  from  the  provisions  in  pari  materia  of  the 
repealed  Acts,  becomes,  to  my  mind,  still  more  apparent.  In  the 
first  place,  the  test  imposed  on  members  of  the  two  Houses  of  Par- 
liament was  then,  for  the  first  time,  reduced  to  the  simple  oath  of 
allegiance  and  a  promise  to  maintain  the  succession  to  the  Crown 
as  settled  by  law.  In  the  next  place,  the  penal  clause  (§  5)  of 
the  Act  of  1866,  itself  affords  conclusive  .proof  of,  at  least,  some 
intentional  change  of  policy.  It  differs  from  the  corresponding- 
clauses  of  the  former  Acts,  not  only  by  omitting  the  words  which 
in  those  Acts  gave  a  common  informer  the  right  to  sue,  but  also 
in  other  most  material  respects,  which  cannot  be  accounted  for 
upon  any  theory  of  inadvertence  or  oversight.  The  civil  disabili- 
ties and  incapacities  of  13  Will.  III.  c,  6  and  1  Geo.  I.  st.  2  c.  13 
are  not  re-enacted  ;  the  forfeiture  of  £500  is  now  the  sole  penalty, 
with  a  provision  (which  was  found  in  the  Act  of  1677,  but  not  in 
that  of  1701  or  1714)  for  vacating  the  seat  of  an  offending 
member  of  the  House  of  Commons.  The  £500  penalty  is,  under 
this  Act,  still  made  recoverable  in  any  one  of  the  superior  courts 
at  Westminster;  but  not  (as  under  the  Act  of  George  I.)  in 
any  Scottish  court.  And  this  penalty  is  imposed  by  the  Act  of 
1866  toties  guoties  for  every  act  of  sitting  or  voting  in  Parliament 
without  having  taken  the  oaths,  which  was  not  done  at  all  as  to 
sitting,  and  was,  at  least,  not  clearly  done  toties  quoties  as  to 
voting,  by  that  Act. 

The  words  of  1  Geo.  I.  st.  2  c.  13  §  17  are,  "If  any  member 
of  the  House  of  Peers  or  member  of  the  House  of  Commons,  in 
this  or  any  succeeding  Parliament  presume  to  vote  or  make  his 
proxy,  not  having  taken  the  said  oath  and  subscribed  the  same, 
every  such  peer  or  member  so  offending  .  .  :  shall  forfeit  the  sum 
of  £500,"  &c.  The  words  of  the  Act  of  1866  are,  "  If  any  member 
of  the  House  of  Peers  rotes,  by  himself  or  his  proxy,  in  the  House  cf 
Peers,  or  sits   as  a  peer  during  any  debate  in    the   said    House. 


680  ACTION   (right  of). 


No.  10.  —  Bradlaugh  v.  Clarke. 


without  having  made  and  subscribed  the  oath  hereby  appointed, 
he  shall,  for  every  such  offence,  be  subject  to  a  penalty  of  £500, 
&c,  and  if  any  member  of  the  House  of  Commons  votes  as  suclt  in 
the  said  House,  or  sits  during  any  debate  after  the  Speaker  has  been 
chosen,  without,  &c,  he  shall  be  subject  to  a  like  penalty  for  every 
such  offence,'"  The  difference  between  a  single  penalty  (assuming 
that  to  have  been  the  proper  construction  of  the  Act  of  George  I.) 
for  neglecting  to  take  the  oath  before  voting,  and  a  penalty  toties 
quoties  for  every  act  of  voting  or  sitting  without  having  taken  the 
oath,  is  enormous ;  and  it  may  be  illustrated  by  the  facts  which 
were  before  the  courts  in  the  present  case.  The  present  appellant 
claimed  to  be  by  law  entitled  to  sit  and  vote  after  making  an  affir- 
mation;  and  on  the  2nd  of  July,  1880,  he  was  permitted  by  the 
House  of  Commons  to  do  so,  "  subject  to  any  liability  by  statute," 
7  Q.  B.  D.  42.  The  judgment  of  the  Queen's  Bench  Division,  hold- 
ing that  he  was  bound  to  swear  and  was  not  entitled  to  affirm,  was 
not  pronounced  till  the  11th  of  March,  1881.  It  is,  therefore,  con- 
ceivable (whether  the  fact  be  so  or  not)  that  the  appellant  might 
have  sat  (voting  or  not  voting)  in  the.  House  of  Commons  on  every 
day  when  that  House  met  during  the  whole  interval  between  the 
2nd  of  July,  1880.  and  the  11th  of  March,  1881,  which  would  be 
about  ninety  days,  making  the  cumulative  penalties  incurred  by 
him  not  less  than  £45,000.  The  legislature  might  well  have  hesi- 
tated to  place  it  in  the  power  of  every  common  informer  to  enforce 
fines  of  such  enormous  amounts  as  might  be  incurred  under  the 
Act  of  18G6,  either  through  some  such  controversy  as  that  which 
occurred  in  the  present  case,  or  when  (as  happened  to  certain  peers 
who  obtained  Acts  of  Indemnity)  the  necessity  for  a  repetition  of 
the  oath  by  a  peer  in  every  new  Parliament  was  not  understood. 

The  legislature,  when  making  these  material  and  important 
changes  in  the  provisions  and  terms  of  the  penal  section  of  the 
Act  of  1866,  must,  I  think,  be  taken  to  have  had  under  its  eyes 
the  provisions  and  terms  of  the  penal  clauses  of  the  former 
statutes,  and  to  have  deliberately  departed  from  them  ;  and  that 
with  knowledge  of  the  law  that  every  unappropriated  penalty  goes 
to  the  king,  and  that  a  common  informer  cannot  have  any  right 
to,  or  interest  in,  a  penalty  imposed  by  a  public  statute,  unless  it  is 
given  to  him  either  expressly  or  by  a  just  and  reasonable  implica- 
tion from  the  words  which  the  legislature  has  used.  The  whole 
provisions  of  the  earlier  Acts,  as  to  the  manner  of  recovering  pen- 


SECT.  III. — WHERE   ADEEMED    OR   ABRIDGED    BY    STATUTE.       681 

No.  10.  —  Bradlaugh  v.  Clarke.  —  Notes. 

alties,  might  easily  have  been  kept  alive  by  proper  words  of  refer- 
ence, and  applied  to  the  new  form  of  oath,  as  had  been  done  by 
6  Geo.  Ill  c.  53,  10  Geo.  IV.  c.  7^4,  and  L'l  &  22  Vict.  c.  48,  if  that 
were  the  intention  ;  and  this,  although  the  civil  disabilities  and 
incapacities  might  have  been  removed.  But  it  was  not  done  ;  new 
words,  omitting  the  grant  of  the  penalty  "  to  him  or  them  that 
should  sue  for  the  same,"  were  (designedly,  as  I  must  take  it)  used  ; 
and  all  the  former  Acts,  so  far  as  they  related  to  the  oaths  to  be 
taken  by  members  of  either  House  of  Parliament,  were  absolutely, 
and  without  reservation,  repealed. 

I  am,  for  these  reasons,  of  opinion  that  your  Lordships  ought  to 
construe  the  words  of  the  penal  clause  of  the  Act  of  1866  as  they 
stand,  without  importing  into  them  any  considerations  of  policy 
from  the  provisions  of  the  former  Acts  as  to  popular  actions,  which 
are  not  in  terms  re-enacted.  It  follows  that,  in  my  judgment,  the 
present  appeal  ought  to  succeed,  and  I  shall  humbly  move  your 
Lordships  that  the  judgment  appealed  from  be  reversed  and  the 
action  of  the  respondent  against  the  appellant  be  dismissed  with 
costs,  and  that  the  respondent  do  pay  the  costs  of  this  appeal. 

Lords  Blackburn,  Watson,  and  Fitzgerald  concurred  in  the 
judgment  proposed  by  Lord  Selborne,  and  delivered  their  reasons 
at  some  length.  These  are  for  the  most  part  substantially  embod- 
ied in  the  judgment  of  Lord  Selborne. 

The  orders  appealed  from  wrere  accordingly  reversed,  the  actiou 
dismissed  with  costs,  the  respondents  to  pay  the  costs  of  this 
appeal ;  and  the  cause  was  remitted  to  the  Queen's  Bench  Division. 

Lords'  Journals,  9th  April,  1883. 

ENGLISH   NOTES. 

So  in  Vallance  v. Falls  (1884),  13  Q.  B.  D.  109;  53  L.  J.  Q.  B.  459, 
it  was  held  by  a  divisional  Court  of  the  Queen's  Bench  Division,  that 
an  action  cannot  be  maintained  by  a  seaman  against  the  master  of  a 
ship  for  a  refusal  to  give  him  a  certificate  of  discharge  under  the  172nd 
section  of  the  Merchants  Shipping  Act,  1854,  the  only  remedy  for  such 
refusal  being  the  penalty  provided  by  that  section;  —  and  it  being  pro- 
vided by  another  section,  that  all  penalties  under  the  Act  may  be 
directed  by  the  court  or  magistrate  imposing  them  to  be  applied  in 
compensation  of  the  party  injured,  and  in  default  of  that  direction 
are  to  be  paid  into  the  Exchequer. 

But  where  an  Act  of  Parliament  contains  a  provision  for  the  special 


682  ACTION  (kight  of). 


No.  11.  —  St.  Pancras  v.  Batterbury. — Rule. 


protection  or  benefit  of  an  individual,  he  may  enforce  his  rights  there- 
under by  an  action,  without  either  joining  the  Attorney-General  as  a 
party,  or  showing  that  he  has  sustained  any  particular  damage.  So  in 
Mayor,  &c.  of  Devonport  v.  PI //month,  &c.  Tramways  Co.  (1884),  52 
L.  T.  161,  the  Devonport  Corporation  were  held  entitled  to  bring  an 
action  for  an  injunction  to  restrain  the  Tramways  Company  from  open- 
ing or  using  for  public  traffic  a  tramway  which,  under  the  Special  Act, 
was  not  to  be  opened  or  used  without  the  consent  of  that  corporation. 


AMERICAN  NOTES. 

When  a  statute  does  not  in  terms  declare  in  whose  name  a  suit  shall  be 
conducted  for  the  recovery  of  a  penalty,  the  suit  must  be  in  the  name  of  the 
people.  People  v.  Young,  72  Illinois,  -ill;  Caroon  v.  Rogers,  6  Jones  Law 
(Xo.  Carolina),  2i0. 

In  Slate  v.  Smith,  49  New  Hampshire,  155;  6  Am.  Rep.  480,  it  is  said :  "In 
this  country  the  several  statutes  creating  the  rewards  for  the  conviction  of 
criminals  also  often  designate  the  just  mode  of  their  distribution.  But  in  this 
case  the  statute  is  silent  on  this  point.  It  is  therefore  left  for  the  court  to 
establish  a  rule  of  practice  that  shall  do  substantia]  justice  to  all  in  interest. 
It  is  very  manifest  that  the  court  can  obtain  correct  knowledge  of  the  true 
prosecutor  for  offences  under  this  Act,  in  each  particular  case,  only  through 
the  medium  of  the  prosecuting  officer.  In  some  cases  there  may  be  more 
than  one  claimant  to  the  same  reward.  Without  specific  knowledge,  the  court 
will  naturally  stand  on  the  Massachusetts  rule  of  practice,  assuming,  until 
otherwise  informed  by  record  testimony,  that  the  State  is  entitled  to  the  whole 
of  the  statute  penalty."     Citing  Commonwealth  v.  Frost,  5  Massachusetts,  53. 


No.  11.  — ST.  PANCRAS  (VESTRY)  v.  BATTERBURY. 

(c.  p.  1857.) 

RULE. 

Where  an  Act  of  Parliament  creates  a  pecuniary  obliga- 
tion, and  directs  that  the  amount  due  shall  be  ascertained 
and  recovered  in  a  prescribed  summary  manner,  an  action 
does  not  lie  for  its  recovery. 

St.  Pancras  (Vestry)  v.  Batterbury. 

26  L.  J.  C.  P.  243  (s.  C.  2  C.  B.  N.  S.  477). 

The  declaration  stated  in  effect  that  a  certain  sum  was  due  by 
the  defendants  to  the  plaintiffs,  as  vestryman  elected  under  the 


SECT.  III.  —  WHERE    ADEEMED    OK   ABRIDGED   BY   STATUTE.       683 
No.  11.  —  St.  Pancras  v    Batterbury. 


Metropolitan  Management  Act,  1855  (18  &  19  Vict.  c.  120),  in 
respect  of  the  non-repair  of  a  certain  new  street  laid  out  as  therein 
stated.  The  defendant  demurred  ;  and  supported  the  demurrer  on 
the  ground  "  that  the  action  is  for  expenses  by  Statute  18  &  19 
Vict.  c.  120  directed  to  be  paid,  and  that  a  special  remedy  is  pro- 
vided by  §1225  of  the  said  Act,  and  therefore  an  action  does  not 
lie  for  them." 

This  section  (225)  is  as  follows :  "  In  every  case  where  the 
amount  of  any  damage,  costs,  or  expenses  is  by  this  Act  directed 
to  be  ascertained  or  recovered  in  a  summary  manner,  or  the  amount 
of  any  damage,  costs,  or  expenses  is  by  this  Act  directed  to  be 
paid,  and  the  method  of  ascertaining  the  amount  or  enforcing 
the  payment  thereof  is  not  provided  for,  such  amount  shall  in  case 
of  dispute  be  ascertained  and  determined  by,  and  shall  be  recovered 
before,  two  Justices." 

The  question  on  the  demurrer  having  been  argued :  — 
Cockburn,  C.  J.  I  am  of  opinion  that  this  action  will  not  lie, 
and  that  the  proper  remedy  is  under  the  225th  section.  Where 
an  Act  creates  a  pecuniary  obligation  and  gives  a  remedy  by  a 
particular  mode  of  proceeding,  a  question,  no  doubt,  will  arise 
on  the  particular  terms  in  which  it  is  given,  whether  it  is  exclu- 
sive or  cumulative.  But  the  language  of  this  section  (225)  is  very 
peremptory.  It  says  that  where  the  amount  of  any  damage,  costs, 
or  expenses  is  by  this  Act  directed  to  be  ascertained  or  recovered 
in  a  summary  manner,  or  the  amount  of  damage,  costs,  or  expenses 
is  by  this  Act  directed  to  be  paid,  and  the  method  of  ascertaining 
the  amount  or  enforcing  the  payment  thereof  is  not  provided  for, 
such  amount  shall  in  case  of  dispute  be  ascertained  and  deter- 
mined by,  and  shall  be  recovered  before,  two  Justices.  Then  the 
Act,  having  created  a  pecuniary  obligation,  points  out  in  the  most 
positive  and  peremptory  manner  the  mode  in  which  the  obligation 
shall  be  enforced,  and  the  amount  of  the  expenses  recovered. 
That  clearly  points  out  the  way  in  which  the  proceedings  are 
to  be  taken,  and  one  can  well  understand  why.  It  may  be  a  case 
in  which  the  owners  of  a  hundred  houses  are  called  on  to  con- 
tribute to  the  expense  of  paving,  and  disputes  may  arise  where  a 
number  may  be  interested  as  to  the  amount  which  each  is  to 
contribute.  In  such  case  no  question  of  law  can  arise,  but  the 
question  is  simply,  how  much  each  is  to  pay.  There  is  no  ques- 
tion of  law  or  of  fact  requiring  the  intervention  of  a  jury,  and 


684  ACTION  (right  of). 


No.  11.  —  St.  Pancras  v.  Batterbury.  —  Notes. 


therefore  there  cannot  be  a  better  tribunal  than  the  one  pointed 
out.  On  the  other  hand,  if  the  vestry  were  to  have  to  issue  that 
number  of  writs,  it  would  be  very  inconvenient. 

Cresswell,  J.  I  am  of  the  same  opinion, —  viz.,  that  the  pecuni- 
ary obligation  and  the  mode  of  enforcing  it  are  indissolubly  united 
in  this  act  of  Parliament. 

Williams,  J.  I  am  of  the  same  opinion,  for  the  reasons  pointed 
out  by  my  Lord.  Where  an  act  of  Parliament  creates  a  right  and 
points  out  a  remedy,  no  other  remedy  exists.  As  to  the  case  in 
the  Exchequer,  Sheppard  v.  Hills  (1856),  11  Ex.  Rep.  55  ;  25  L.  J. 
Ex.  6,  that  went  on  the  ground  that  the  particular  process  did  not 
cover  the  whole  right,  and  therefore  could  not  have  been  the 
remedy  which  the  statute  meant  to  direct. 

WiLLES,  J.,  concurred.  Judgment  for  the  defendant. 

ENGLISH   NOTES. 

For  comparison  witli  this  rule,  the  judgment  of  Lord  Campbell  in 
Couch  v.  Steel,  cited  under  Ashby  v.  White  (No.  1,  p.  521,  528,  ante), 
may  be  usefully  referred  to. 

In  Evans  v.  Manchester,  &c.  By.  Co.  (1887).  36  Ch.  D.  626;  57  L. 
J.  Oli .  153,  it  was  held  by  Kekewich,  J.,  that  although  the  company, 
to  whom  had  been  transferred  the  undertaking  of  a  canal  company,  were 
liable  for  neglect  in  not  repairing  the  canal  after  a  subsidence  caused  by 
mines  (which  the  company  might  have  bought  up  but  did  not),  and 
consequent  damage  to  a  mill-owner  by  leakage,  yet,  as  a  special  mode  of 
obtaining  compensation  was  directed  by  the  old  Canal  Act,  the  plaintiff 
could  not  maintain  an  action  for  an  injunction  and  damages. 

The  same  principle  has  been  applied  to  cases  where  a  new  statutory 
jurisdiction  has  been  created,  with  specific  means  of  enforcing  it  by  the 
court  having  the  jurisdiction.  The  judgment  of  such  a  court  does  not 
create  a  debt  on  which  an  action  can  be  maintained.  So  it  has  been 
decided  in  regard  to  the  county  courts,  Berkeley  v.  Elderhin  (1853),  1 
E.  &  B.  805;  22  L.  J.  Q.  B.  281.  And  in  regard  to  an  order  for 
alimony  made  by  the  Probate  Division  of  the  High  Court  under  the 
jurisdiction  created  by  the  Divorce  Act,  20  &  21  Vict.  c.  85  (§§  6,  52), 
Bailey  v.  Bailey  (1884),  13  Q.  B.  D.  855;  53  L.  J.  Q.  B.  583.  In  the 
last-mentioned  case  it  is  pointed  out  by  Bowex,  L.  J.,  that  the  de- 
cision was  in  accordance  with  the  principle  laid  down  in  Hutchinson 
v.  Gillespie  (1856),  11  Ex.  798;  25  L.  J.  Exch.  103,  which  was  an 
action  to  recover  costs  awarded  by  a  final  order  of  the  Judicial  Com- 
mittee of  the  Privy  Council.    The  Statute  in  that  case,  3&  4  Win.  IV., 


SECT.  III.  —  WHERE   ADEEMED    OK   ABRIDGED   BY   STATUTE.       685 
No.  11.  —  St.  Pancras  v.  Batterbury.  — Notes. 


c.  41.  directs  that  such  costs  shall  be  paid  as  the  Judicial  Committee 
direct,  but  does  not  give  a  specific  remedy;  and  the  Court  held  thai  they 
might  be  recovered  in  an  action  for  debt.  "  It  is  a  well  known  rule," 
says  Baron  Martin  (11  Ex.  814),  "that,  it'  a  statute  directs  a  sum  of 
money  to  be  paid,  unless  a  specific  remedy  be  given,  debt  may  lie  main- 
tained for  its  recovery."  A  similar  point  came  into  question  in  West' 
moreland  Green,  &c,  Blue  Slate  Co.  v.  Fielden  (C.  A.  1891),  3Ch.  15; 
(Id  L.  ,1.  Ch.  680,  where  the  company  (in  liquidation)  sued  for  calls, 
and  a  defence  was  raised  on  the  ground  that  the  liquidator  had,  in  re- 
spect of  the  calls,  already  obtained  a  balance  order  under  the  provisions 
of  The  Companies  Act,  186L\  It  was  held  that  the  summary  order  was 
not  prescribed  as  the  only  mode  of  recovering  the  calls,  nor  could  the 
debt  he  merged  in  the  order  as  if  it  were  a  final  judgment;  and  that  the 
action  might  be  maintained. 

AMERICAN   NOTES. 

Where  by  a  statute  a  new  offence  is  created,  and  a  penalty  is  given  for  it, 
or  a  new  right  and  specific  relief  given  for  the  violation  of  such  right,  the  pun- 
ishment or  remedy  is  confined  to  that  given  by  the  statute.  Andooer  ;V  Med  ford 
Turnpike  v.  Gould,  li  Massachusetts,  44  ;  Bangor  House  Proprietary  v.  Hinckley,  •'! 
Fairfield  (Maine),  388;  Moncriefv  Ely,  19  Wendell  (New  York),  405 ;  C rosin/ 
v.  Bennett,  7  Metcalf  (Mass.),  17;  Smith  v.  Lock-wood,  13  Barbour  (New  York 
Supreme  Ct.),  209;  Dudley  v,  Mayhew,  3  New  York,  9.  In  the  latter  case  it 
was  held  that  the  Federal  courts  alone  have  jurisdiction  to  restrain  infringe- 
ments of  patents.  The  court  said:  "The  remark  made  by  Lord  Holt  in 
Eiver  v.  Jones,  2  Salk.  415,  that  whenever  a  statute  gives  a  right  the  party 
shall  by  consequence  have  an  action  at  law  to  recover  it,  is  undoubtedly  cor- 
rect when  applied  to  cases  where  the  statute  does  not  give  any  remedy  to  the 
proprietor  for  the  invasion  of  his  property  or  right.  The  principle  that  where 
a  statute  confers  a  right  and  prescribes  adequate  means  for  jirotecting  it,  the 
proprietor  is  confined  to  the  statutory  remedy,  is  conformable  to  the  manifest 
intention  of  the  legislature  in  such  cases,  and  has  therefore  been  properly 
settled  in  the  courts  of  England  and  in  this  country."  See  Smith  v.  City  of 
Albany,  7  Lansing  (New  York  Supreme  Ct.),  17;  Calking  v.  Baldwin,  4  Wen- 
dell (New  York),  667.  The  last  was  an  action  for  flowing  lands  by  means  of 
a  dam,  and  it  was  held,  that  as  the  dam  was  erected  by  virtue  of  the  Act  of 
the  legislature  for  the  improvement  of  the  navigation  of  the  river,  and  the  Act 
provided  for  compensation  for  damages,  the  party  injured  was  restricted  to  the 
statutory  form  of  remedy.  Marcy,  J.,  said  :  "  The  rule  of  construction,  that 
if  a  statute  gives  a  remedy  in  the  affirmative,  without  a  negative  expressed 
or  implied,  for  a  matter  which  was  actionable  at  common-law,  the  party  is  not 
deprived  of  his  common-law  remedy,  but  may  elect  to  take  it  or  that  offered 
by  the  statute,  does  not,  I  apprehend,  apply  to  acts  done  by  the  express  au- 
thority of  the  legislature  for  a  public  purpose.  The  legislature  have  prescribed 
the  mode  in  which  the  damages  of  the  plaintiff  shall  be  ascertained,  and  in 
that  mode  only  can  they  properly  seek  compensation." 


686  ACTION    (lllGHT    OF). 


No.  12.  —  Lloyd's  v.  Harper. — Rule. 


Section  IV.  —  Arising  out  of  Contract  ivith  Third  Person. 

No.  12.  —  LLOYD'S   v.   HARPER. 

(c.  a.  1880.) 

No.  13.  —  In   re   EMPRESS   ENGINEERING   Co. 

(c.  a.  1880.) 

RULE. 

It  is  an  established  rule  of  law  that  where  a  contract  is 
made  between  A.  and  B.,  whereby  B.  promises  payment  or 
performance  to  A.  for  the  benefit  of  C,  A.  can  sue  on  the 
contract  and  recover  all  that  C.  could  have  recovered  if 
the  contract  had  been  made  with  C.  himself. 

And,  A.  being  in  such  a  case  a  trustee  for  C,  C.  is,  in  a 
court  of  equity,  himself  entitled  to  sue  as  plaintiff. 

But  where  there  is  a  mere  contract  between  A.  and  B. 
that  one  of  them  shall  pay  a  sum  of  money  to  C,  that  gives 
no  right  of  action  to  C.  either  at  law  or  in  equity. 

Lloyd's  v.  Harper. 

16  Ch.  D.  290  (s.  c.  50  L.  J.  Ch.  140). 

In  May,  1863,  Robert  Henry  Harper  was  a  candidate  for  election 
as  an  underwriting  member  of  Lloyd's,  and  on  the  19th  of  May, 
1863,  his  father,  Samuel  Harper,  who  had  been  himself  a  member 
of  Lloyd's  for  many  years,  wrote  a  letter  to  the  committee  of  Lloyd's 
as  follows  :  — 

"  My  son,  Mr.  Robert  Henry  Llarper,  being  a  candidate  for  admis- 
sion to  Lloyd's  as  an  underwriting  member,  I  beg  to  tender  my 
guarantee  on  his  behalf,  and  to  hereby  hold  myself  responsible  for 
all  his  engagements  in  that  capacity." 

R,  H.  Harper  was  thereupon  elected  by  the  committee,  and  ad- 
mitted as  an  underwriting  member  of  Lloyd's,  and  he  thenceforth 
proceeded  to  contract  engagements  in  that  capacity,  by  underwriting 
and  becoming  liable  upon  policies  of  marine  insurance  to  various 


SECT.  IV.  —  CONTRACT   WITH   THIRD    PERSON.  687 

No.  12.  —  Lloyd's  v.  Harper. 

persons,  until  he  stopped  payment  in  November,  1878.  The  busi- 
ness of  underwriting  members  of  Lloyd's  consisted  to  a  great  extent 
in  underwriting  policies  of  insurance  in  favour  of  merchants  and 
others  who  were  not  members  of  Lloyd's,  such  policies  being  effected 
through  the  agency  of  insurance  brokers  who  were  members  or 
subscribers. 

The  preamble  of  Lloyd's  Act,  1871,  contained  a  recital  that  the 
society  was  regulated  by  a  deed  of  association  of  the  30th  of  Au- 
gust, 1811,  "  which  deed,  or  a  deed  of  accession  referring  thereto, 
has  usually  been  from  time  to  time  executed  by  the  several 
members  of  the  society,"  and  the  Act  contained  {inter  alia), the 
following  provisions  :  — 

Sect.  1  provided  that  on  the  passing  of  the  Act  the  deed  of  the  30th 
of  August,  1811,  and  any  deed  of  accession  thereto,  should  be  an- 
nulled. Sect.  2  provided  that  the  then  members  of  the  committee 
and  all  persons  admitted  as  members  of  Lloyd's  before  or  after  the 
passing  of  the  Act  should  be  thereby  united  into  a  society  and  corpo- 
ration for  the  purposes  of  the  A.ct,  and  for  those  purposes  should  be 
thereby  incorporated  by  the  name  of  "  Lloyd's,"  and  by  that  name 
should  be  one  body  corporate  with  perpetual  succession. 

Sect.  4.  "  All  property  and  rights  of  or  to  which  the  committee 
for  managing  the  affairs  of  Lloyd's,  or  any  person  on  their  behalf, 
or  any  trustee  for  that  committee  or  for  the  members  of  Lloyd's, 
are  or  is  possessed  or  entitled  at  law  or  in  equity  at  the  passing  of 
this  Act,  shall,  by  virtue  of  this  Act,  belong  to  the  society  to  the 
same  extent  and  for  the  same  estate  and  interest  as  the  same  re- 
spectively is  and  are  at  the  passing  of  this  Act  vested  in  that  com- 
mittee, person,  or  trustee,  and  may  be  held,  used,  and  enjoyed 
accordingly;  and  all  trustees  for  the  establishment  or  society  as  it 
existed  before  the  passing  of  this  Act,  or  for  that  committee,  shall 
be  and  continue  trustees  for  the  society,  as  nearly  as  may  be  as  if 
this  Act  has  not  been  passed." 

Sect.  5.  "  Notwithstanding  the  annulling  by  this  Act  of  the  afore- 
said deeds  of  association  and  accession,  and  the  incorporation  by  this 
Act  of  the  society,  all  deeds  of  trust,  leases,  mortgages,  bonds,  con- 
tracts, agreements,  securities,  transfers,  and  other  acts  and;  things 
before  the  passing  of  this  Act  made,  entered  into,  executed,jor  done 
by  or  with  the  committee  for  managing  the  affairs  of  Lloyd's  or  any 
person  or  trustee  as  aforesaid,  shall  be  as  good,  valid,  and  effectual 
to  all  intents  for,  against,  and  with  reference  to  the  society,  as  they 


688  ACTION  (right  of). 


No.  12.  —  Lloyd's  v.  Harper. 


would  have  been  for,  against,  or  with  reference  to  such  committee 
if  this  Act  had  not  been  passed,  and  may  be  proceeded  on,  executed, 
used,  dealt  with,  and  enforced  accordingly,  the  society  being  only 
substituted  in  or  in  relation'  thereto  respectively  for  such  com- 
mittee." 

Sect.  22.  "  If  any  member  of  the  society  becomes  bankrupt  or 
insolvent,  or  suspends  payment,  or  places  his  affairs  in  the  hands  of 
inspectors  or  trustees,  or  proposes  any  composition  with  his  credi- 
tors, he  shall  thereupon  cease  to  be  a  member." 

Sect.  25.  "  No  by-law  shall  be  made  by  the  society  providing 
for  exclusion  from  membership  of  the  society  for  any  cause." 

Sects.  36  and  37  contained  provisions  for  the  indemnity  of  the 
trustees  of  the  corporation  out  of  its  capital  stock  and  by  the  mem- 
bers similar  to  the  provisions  for  that  purpose  contained  in  the  deed 
of  the  30th  of  August,  1811.  The  Act  also  provided  that  the  affairs 
of  the  society  should  be  managed  by  a  committee. 

Samuel  Harper  died  on  the  15th  of  September,  1876,  and  notice 
of  his  death  was  shortly  afterwards  given  to  the  committee  of 
Lloyd's. 

This  action  was  commenced  in  March,  1879,  by  Lloyd's  and  a 
firm  of  R.  S.  Jones,  Price,  &  Co.,  as  plaintiffs,  against  the  executors 
of  Samuel  Harper  (of  whom  R.  H.  Harper  was  one)  as  defendants. 
R.  S.  Jones,  Price,  &  Co.  were  insurance  brokers,  to  whom  at  the 
time  of  his  failure  R.  H.  Harper  was  indebted  in  the  sum  of  £134 
8s.  5d.  on  the  balance  of  an  account  in  respect  of  policies  under- 
written by  him  after  the  death  of  Samuel  Harper. 

The  plaintiffs  alleged  that  R.  H.  Harper  had  also,  as  a  member 
of  Lloyd's,  underwritten  policies  effected  by  other  persons  to  a 
large  amount,  and  that  considerable  sums  of  money  were  due  and 
owing  from  him  upon  such  policies,  and  that  some  of  the  persons 
to  whom  those  sums  were  due  had  called  upon  the  plaintiffs, 
Lloyd's,  to  enforce  for  their  benefit  the  guarantee  given  by  Samuel 
Harper. 

The  plaintiffs  claimed  a  declaration  that  the  death  of  Samuel 
Harper  did  not  operate  to  revoke  the  guarantee,  and  that  the  de- 
fendants might  be  ordered  to  pay  to  R.  S.  Jones,  Price,  &  Co.  the 
amount  due  to  them  under  the  guarantee,  and  that  the  persons 
entitled  to  the  benefit  of  the  guarantee  and  the  amounts  of  their 
claims  respectively  might  be  ascertained  and  determined,  and  that 
the  defendants  might  be  ordered  to  pay  the  same,  and  that  their 


SECT.  IV.  —  CONTRACT   WITH    THIRD    PERSON.  G89 

No.  12  —  Lloyd's  v.  Harper. 

liability  upon  the  guarantee  might  be  discharged.  Also  that  the 
defendants  might  admit  assets  of  their  testator,  or  else  that  his 
estate  might  be  administered  by  and  under  the  direction  of  the 
court. 

By  their  statement  of  defence  the  defendants  insisted  that,  at 
any  rate  from  the  time  when  the  committee  of  Lloyd's  became 
aware  ^f  the  death  of  the  testator,  no  liability  was  incurred  by  his 
estate  under  the  guarantee  in  respect  of  any  contract  afterwards 
entered  into  by  11.  H.  Harper;  that  Lloyd's  were  under  no  liability 
in  respect  of  any  of  the  policies  underwritten  by  R.  H.  Harper  ; 
and  that  the  persons  to  whom  moneys  were  due  in  respect  of 
policies  underwritten  by  R.  H.  Harper  had  no  right  to  require 
Lloyd's  to  enforce  for  their  benefit  the  testator's  guarantee.  The 
defendants  also  insisted  that  there  was  no  privity  of  contract  between 
the  testator's  estate  and  the  firm  of  Jones,  Price,  &  Co.,  or  any  of 
the  members  thereof. 

On  the  trial  before  Fry,  J.,  evidence  was  given  as  to  the  practice 
of  the  committee  of  Lloyd's  (previously  to  their  incorporation)  as 
to  obtaining  guarantees;  and  the  question  of  the  plaintiff's  right 
to  recover  upon  the  guarantee  having  been  argued,  and  reserved 
for  further  consideration,  judgment  was  given  as  follows:  — 

Fry,  J.  I  reserved  this  case  for  further  consideration  on  one 
point, — viz.,  how  far  substantial  damages  can  be  recovered  by  the 
plaintiffs,  Lloyd's,  with  whom  the  engagements  against  which 
the  indemnity  was  given  were  not  contracted.  In  my  opinion  the 
action  can  be  maintained  for  the  whole  amount  covered  by  the 
guarantee.  It  appears  to  me  from  the  cases  which  were  cited  in 
the  course  of  the  argument,  especially  Tomlinson  v.  Gill,  Amb.  330; 
and  Lamb  v.  Vice,  6  M.  &  W.  467,  that  where  a  contract  is  made  for 
the  benefit  and  on  behalf  of  a  third  person,  there  is  an  equity  in 
that  third  person  to  sue  on  the  contract,  and  the  person  who  has 
entered  into  the  contract  may  be  treated  as  a  trustee  for  the  person 
for  whose  benefit  it  has  been  entered  into. 

In  the  present  case  I  think  the  application  of  that  principle  is 
particularly  clear.  The  contract  was  made  with  the  committee 
of  Lloyd's,  —  that  is,  with  the  agents  of  the  subscribers  to  Lloyd's. 
Now,  all  the  engagements  which  are  covered  by  the  guarantee 
are  either  engagements  with  subscribers  to  Lloyd's  or  engage- 
ments with  strangers,  hut  made  through  the  intervention  of  sub- 
scribers to  Lloyd's.  Now,  in  the  first  case,  that  of  engagements 
vol.  i.  —  44 


690  ACTION  (right  of). 


No.  12.  — Lloyd's  v.  Harper. 


with  subscribers  to  Lloyd's,  it  appears  to  me  to  be  clear  that  the 
subscribers  have  a  right  to  call  on  their  agents,  the  committee  or 
the  corporation,  to  enforce  the  contract  which  they  entered  into 
with  the  testator  for  the  benefit  of  those  subscribers.  In  the 
second  case,  that  of  engagements  with  strangers  effected  through 
the  intervention  of  subscribers,  I  think  that  each  outsider  has  a 
right  to  require  his  agent,  the  insurance  broker,  to  call  upon  his 
agents,  the  committee  or  corporation,  to  enforce  the  bargain  for 
the  benefit  of  the  outsider.  In  that  way,  it  appears  to  me  that 
all  those  persons  for  whose  benefit  the  contract  was  really  entered 
into  are  entitled  to  call  on  Lloyd's,  to  enforce  it.  Lloyd's,  there 
fore,  are  trustees,  and  are  entitled  to  judgment  for  the  entire  sum 
covered  by  the  guarantee. 

There  will  therefore  be  a  declaration  that,  according  to  the  true 
construction  of  the  guarantee,  the  estate  of  Samuel  Harper  is 
liable  to  satisfy  all  engagements  contracted  by  Eobert  Henry 
Harper,  in  his  character  of  an  underwriting  member  of  Lloyd's, 
down  to  the  time  of  his  suspension  of  payment,  and  not  satisfied 
by  him,  whether  such  engagements  were  contracted  with  members 
of  or  subscribers  to  Lloyd's,  or  with  any  other  persons,  and  whether 
during  the  life  of  Samuel  Harper  or  after  his  death.  Then  there 
will  be  an  inquiry  as  to  the  amount  of  those  engagements  and 
what  is  payable  in  respect  to  them,  and  to  whom,  and  a  direction 
for  payment  accordingly. 

The  defendants  appealed  from  this  judgment,  and  the  appellants, 
having  been  heard  before  the  Lords  Justices  James,  Cotton,  and 
Lush,  they  delivered  judgment  as  follows  :  — 

Nov.  15,  1880.  James,  L.  J.  We  have  had  an  opportunity  of 
considering  this  case  since  it  was  on  before,  and  we  need  not  call 
on  the  respondents. 

The  facts  of  the  case  are  these  :  A  gentleman  of  the  name  of 
Harper  was  minded  to  be  introduced  as  what  was  called  an  under- 
writing member  of  Lloyd's  Association,  and  in  accordance  with 
the  custom  which  had  been  introduced  some  years  before,  and 
was  in  existence  at  that  time,  the  committee  before  they  admitted 
him  to  that  position  required  a  guarantee.  His  father,  who  was 
at  that  time,  I  believe,  himself  an  underwriting  member  of  Lloyd's, 
gave  the  guarantee  to  the  committee  in  the  following  words: 
"My  son,  Eobert  Henry  Harper,  being  a  candidate  for  admission  to 
Lloyd's  as  an  underwriting  member,  I  beg  to  tender  my  guarantee 


SKCT.  IV.  —  CONTRACT   WITH   THIRD   PERSON.  691 


No.  12. — Lloyd's  v.  Harper. 


on  his  behalf,  and  to  hereby  hold  myself  responsible  for  all  his 

engagements  in  that  capacity," 

The  first  question  which  was  raised  on  this  appeal  was,  that 
*ipon  the  construction  of  that  guarantee  it  did  nut  extend  to  any 
liability  under  which  the  son  might  conic  to  the  outside  world, 
but  was  confined  to  engagements  which  he  might  be  under  to  in- 
demnify the  society  itself,  —  i.  e.,  to  what  might  be  called  internal 
engagements.  It  appears  to  us  to  be  impossible  to  put  that  con- 
struction  on  the  guarantee.  The  words  are  "engagements  in  that 
capacity."  In  what  capacity  ?  In  the  capacity  of  an  underwriting 
member.  As  it  seems  to  me,  neither  the  committee  nor  Mr.  Harper, 
the  father,  who  gave  the  guarantee,  nor  the  son,  could  at  the  time 
doubt  that  what  were  meant  to  be  guaranteed  were  the  engage- 
ments the  son  might  enter  into  as  underwriter  with  the  outside 
world,  so  as  to  prevent  any  default  which  would  have  redounded 
to  the  injury  and  discredit  of  the  association  ;  and  it  is  clear  to  my 
mind  that  such  is  the  true  construction  of  the  guarantee. 

That  being  so,  is  there  any  limit  to  the  guarantee  ?  It  was  con- 
tended that  it  was  limited  to  the  lifetime  of  the  guarantor.  It 
appears  to  me  impossible  to  say  that  it  was  so  limited.  It  applies 
in  terms  to  "all  engagements  in  that  capacity."  Whether  the  en- 
gagements were  entered  into  before  or  after  the  death  of  the 
father,  it  appears  to  me  utterly  impossible  to  say  they  were  not 
engagements  entered  into  by  the  son  in  the  capacity  of  an  under- 
writing member.  The  representatives  of  Mr.  Harper  are  bound  by 
Air.  Harper's  guarantee,  just  as  if  he  had  entered  into  a  covenant 
to  indemnify  a  lessor  .against  the  breach  by  the  lessee  of  the 
covenants  of  a  lease.  In  order  to  support  the  contention  that  the 
guarantee  was  ipso  facto  determined  at  the  death  of  the  guarantor, 
it  was  contended  that  the  guarantor  could  himself  in  his  life- 
time have  revoked  the  guarantee,  and  that  therefore  it  must  be 
assumed  that  his  death  would  operate  in  the  same  manner, — that  is 
to  say,  it  is  said  we  must  assume  that  the  executors,  as  it  was  their 
duty  to  do,  have  revoked  the  guarantee,  and  that  matters  are  to  be 
■on  thesame  footing  as  if  the  testator  had  exercised  the  option  to 
determine  it.  Now,  the  foundation  of  that  contention  appears  to 
me  utterly  to  fail.  The  testator,  in  my  opinion,  could  not  have 
determined  the  guarantee,  and  in  that  respect  the  case  differs  es- 
sentially from  the  case  of  Coulthart  v.  Clementson,  5  Q.  B.  J).  42, 
in  which  Mr.  Justice  Bowen  followed  the  decision  in  Harriss  v. 


692  ACTION  (right  of). 


No.  12. — Lloyd's  v.  Harper. 


Fawceit,  Law  Kep.  15  Eq.  311  ;  ib.  8  Ch.  866,  with  regard  to  the 
effect  of  death  in  determining  a  guarantee.  In  those  cases  there  is 
this  distinction  (whether  it  is  sufficient  to  sustain  them  or  not), 
that  each  advance  of  goods  was  a  separate  consideration.  It  may 
be  considered  equitable  and  right  that  where  a  man  is  not  under 
any  obligation  to  make  further  advances  or  to  sell  further  goods, 
a  person  who  has  guaranteed  repayment  of  such  advances  or  pay- 
ment of  the  price  of  the  goods,  may  say,  "  Do  not  sell  any  further 
goods  or  make  any  further  advances  ;  I  give  you  warning  that  you 
are  not  to  rely  upon  my  guarantee  for  any  further  advances  which 
you  make,  or  for  any  further  goods  you  sell."  That  might  be  in 
many  cases  a  very  equitable  view.  It  perhaps  might  be  hardly 
equitable  for  a  banker  or  merchant  to  go  on  making  advances  after 
receiving  a  distinct  notice  from  the  guarantor  that  he  would  not 
be  further  liable.  But  here  the  consideration  is  given  once  for  all, 
just  as  in  the  case  of  the  granting  a  lease  in  which  a  third  party 
guarantees  the  payment  of  the  rent  and  the  performance  of  the 
covenants.  The  father  undertakes  that  if  the  son  is  admitted  to 
the  status  of  an  underwriting  member,  he,  the  father,  will  guarantee 
all  the  son's  engagements  as  such  member.  The  moment  the  son 
was  admitted  to  that  status  he  became  entitled  to  retain  it  until 
he  had  done  some  act  which  under  tie  rules  deprived  him  of  his 
right  to  retain  it.  If  the  testator  could  at  any  time  have  deter- 
mined the  guarantee,  he  could  have  determined  it  the  next  day.  The 
moment  the  son  was  admitted  to  the  status  of  an  underwriting 
member  with  all  its  privileges,  if  the  father  was  at  liberty  to  say? 
"  I  withdraw  the  guarantee,"  then  the  guarantee  would  have  been 
utterly  futile  and  idle.  If  it  could  not  be  determined  by  him  the 
next  day,  there  would  be  no  time  at  which  he  could  have  a  power 
of  determining  it.  That  being  so,  it  appears  to  me  that  his  estate 
is  still  liable  for  all  the  engagements  which  the  son  entered  into 
with  the  persons  who  effected  policies  of  insurance  with  him. 

The  only  other  point  was  one  of  a  rather  technical  character. 
The  defendants  say,  "  You  Lloyd's  have  sustained  no  loss,  and  can 
only  recover  nominal  damages,  because  you  can  only  recover  for 
your  own  loss  and  not  for  the  losses  sustained  by  other  persons." 
That  might  be  true  if  Lloyd's  were  not  trustees,  but  I  am  of  opin- 
ion that  Mr.  Justice  Fry  was  well  warranted  in  the  conclusion  at 
which  he  arrived,  that  the  engagement  was  made  with  the  com- 
mittee as  trustees  for  and  on  behalf  of  the  persons  beneficially  in- 


SECT.  IV.  —  CONTRACT    WITH    THIRD   PKRSON.  693 


No.  12.  —  Lloyd's  v.  Harper. 


fcerested.  That  brings  the  case  within  the  authorities,  of  which  there 
are  more  than  one, — viz.,  Gregory  v.  Williams,  •'!  Mer.  582,  before 
Sir  William  Grant,  Lamb  v.  Vice,  6  M.  &  W.  4(17,  and  many  other 
oases  which  proceed  on  an  obvious  principle,  that  if  A.  is  trustee 
for  B.,  A.  can  sue  on  behalf  of  B.  It  is  a  very  common  case  for  a 
person  to  enter  into  a  policy  of  insurance  with  a  broker  on  behalf 
of  the  persons  interested,  —  it  is  one  of  the  common  forms  of  policy 
of  Lloyd's  itself,  —  and  nobody  ever  supposed  that  a  broker  could 
not  sue  on  such  a  policy  for  the  benefit  of  the  persons  interested. 
It  appears  to  me,  therefore,  that  that  contention  fails. 

Then  it  was  said  that  Lloyd's  cannot  sue  because  they  are  not 
the  persons  with  whom  the  contract  was  made  ;  but  the  act  of 
Parliament  has  transferred  to  Lloyd's  as  a  corporation  all  the  en- 
gagements which  were  entered  into  with  the  committee,  or  any 
person  on  their  behalf.  It  is  said  that  this  enactment  only  ap- 
plied to  the  committee  existing  at  the  time  the  Act  was  passed  ; 
but  the  old  committee,  in  whom  the  right  was  vested,  held  it  on 
behalf  of  the  new  committee,  and  it  appears  to  me  that,  according 
to  the  plain  meaning  of  the  Act,  the  right  was  transferred  to  and 
vested  in  the  corporation  as  the  successor  of  the  managing  bodies 
which  existed  before  their  incorporation.  Therefore,  it  appears  to 
me  that  every  contention  on  the  part  of  the  appellants  lias  failed, 
and  that  the  judgment  of  Mr.  Justice  Fry  must  be  affirmed  with 
costs. 

Cotton,  L.  J.  I  am  of  the  same  opinion.  The  last  point  men- 
tioned by  Lord  Justice  James,  if  it  was  a  good  one,  went  entirely 
to  the  root  of  the  action,  —  viz.,  that  the  plaintiffs  could  not  sue  at 
all,  because  the  right  under  the  guarantee  was  not  vested  in  them. 
But  the  4th  section  of  the  act  of  Parliament,  which  incorporated 
the  present  Lloyd's  Association,  provides  that  "all  property  and 
rights  of  or  to  which  the  committee  for  managing  the  affairs 
of  Lloyd's,  or  any  person  on  their  behalf,  are  or  is  possessed  or 
entitled  at  law  or  in  equity  "  shall  be  transferred  to  the  cor- 
poration. Now,  although  the  committee  at  the  time  when  this 
guarantee  was  entered  into  were  not  the  committee  at  the  time  the 
Act  was  passed,  the  surviving  members  had  this  right  of  action 
vested  in  them  on  behalf  of  the  then  committee,  and  therefore  the 
right  of  suing  under  this  guarantee  became  vested  in  the  plaintiffs, 
Lloyd's. 

The  first  point  to  be  considered  is  the  construction  of  the  guar- 


694  ACTION  (right  of). 


No.  12.  —  Lloyd's  v.  Harper. 


antee.  I  have  hardly  anything  to  add  upon  that.  There  were  two* 
sets  of  members  of  Lloyd's,  —  underwriting  and  subscribing  mem- 
bers. Here  the  guarantee  recites  or  states  that  the  son  proposes, 
or  desires  to  be  admitted  as  an  underwriting  member,  and  it  is  a 
guarantee  for  all  his  engagements  in  that  capacity.  It  was  said 
that  this  was  limited  and  confined  to  his  engagements  with  mem- 
bers of  the  society,  but  there  is  nothing  so  to  limit  it.  It  refers, 
to  all  his  engagements  in  the  capacity  of  an  underwriting  member- 
Were  not  his  engagements  on  the  policies  which  he  underwrote  as 
an  underwriting  member  of  Lloyd's  engagements  in  his  capacity  of 
an  underwriting  member  ?     In  my  opinion  they  were. 

Then  it  was  said  that  this  was  a  contract  only  with  a  committee 
managing  the  affairs  of  Lloyd's,  and  was  to  be  taken  as  only  guar- 
anteeing the  son's  engagements  with  that  committee.  But  —  and 
this  is  material  on  another  point  —  the  committee  were,  in  my 
opinion,  obtaining  this  guarantee  not  only  on  their  own  behalf  (for 
of  course  this  guarantee  would  cover  all  engagements  with  them 
made  by  Mr.  Harper,  Jan.,  as  an  underwriting  member),  but  for  the 
benefit  of  all  those  with  wjiom  Mr.  Harper,  Jun.,  should  enter  into 
contracts  of  insurance;  and,  that  being  so,  the  words  cannot  De- 
limited so  as  to  confine  them  to  engagements  with  the  managing 
committee  of  Lloyd's. 

I  will  next  take  the  question  of  damages.  It  is  said  that,  as- 
suming this  guarantee  to  apply  to  all  the  son's  engagements  as  an 
underwriting  member,  yet  the  plaintiffs  can  get  nominal  damages 
only.  The  answer  is  this,  that  the  plaintiffs  are  suing  here  as  trus- 
tees for  the  benefit  of  all  those  with  whom  Mr.  Harper,  Jan.,  entered 
into  contracts  of  insurance.  That  is  quite  supported  by  the  cases  re- 
ferred to  in  the  judgment  of  Mr.  Justice  Fry,  —  Gregory  v.  Williams, 
3  Mer.  582,  before  Sir  William  Grant,  and  the  older  case  of  Tom- 
linson  v.  Gill,  Amb.  330,  before  Lord  Hardwicke.  It  appears  from 
the  note  to  3  Mer.  that  in  Tomlinson  v.  Gill  the  plaintiff  was  a  cre- 
ditor, and  Lord  Hardwicke  puts  his  decision  upon  the  ground 
that  the  person  with  whom  the  contract  was  entered  into  must  be 
treated  as  a  trustee  for  all  the  creditors,  and  that  therefore  the  ces- 
tuisque  trust  could  sue  in  equity.  Lord  Hardwicke  is  represented 
as  saying,  "  The  plaintiff  is  proper  for  relief  here  for  two  reasons. 
He  could  not  maintain  an  action  at  law,  for  the  promise  was  made 
to  the  widow  ;  but  he  is  proper  here,  for  the  promise  was  for  the 
benefit    of   the  creditors,  and   the  widow  is  a  trustee  for  them." 


SECT.  IV.  —  CONTRACT    WITH    THIRD    PERSON.  695 

No.  12.  —  Lloyd's  v.  Harper. 

This  principle  is,  I  think,  a  good  and  sound  one,  and  one  upon  which 
we  can  properly  act,  and  are  bound  to  act  in  the  present  case,  treat- 
ing the  plaintiffs,  Lloyd's,  as  trustees  for  those  fur  whose  benefit 
this  contract  was  entered  into. 

There  is  only  one  other  point,  and  that  partly  turns  upon  the 
construction  of  this  document  and  partly  on  what  was  said  to  be 
the  law  as  regards  guarantees.  It  was  said  that  this  guarantee  was 
determinable,  and  was  determined  by  notice  of  the  death  of  Mr. 
Harper,  Sen.  In  my  opinion  that  cannot  prevail.  When  we  look 
at  the  contract  itself,  it  is  in  its  terms  entirely  unlimited  as  regards 
the  time  during  which  the  engagements  guaranteed  were  to  be  en- 
tered into.  It  is  a  guarantee  given  in  consideration  of  an  act  once  for 
all  done  by  the  persons  to  whom  the  guarantee  was  given,  —  that 
is  to  say,  it  was  a  guarantee  given  in  the  event  of  Lloyd's  admitting 
the  son  into  their  association.  That  is  a  thing  which  is  done  once 
for  all ;  and  if  the  guai'antee  was  recalled  or  put  an  end  to  the  son 
could  not,  under  any  of  the  rules  of  Lloyd's,  be  turned  out  of  the 
association  because  the  guarantee  was  determined.  Such  determi- 
nation was  not  provided  for  by  the  rules,  and  the  association  could 
not  say  that  by  reason  of  it  the  son  had  ceased  to  be  a  member  of 
Lloyd's.  In  fact,  it  appears  that  at  that  time  there  was  not  a  uni- 
versal practice  that  there  should  be  such  a  guarantee. 

Now,  how  is  it  made  out  that  the  guarantee  was  determined  by 
notice  of  death  ?  It  is  said  that  the  authorities  have  established 
this,  that  where  there  is  a  continuing  guarantee  for  advances  from 
time  to  time  to  be  made  to  another  person,  that  guarantee  can  be 
determined  by  the  grantor  during  his  life  and  is  put  an  end  to  by 
notice  of  his  death.  I  give  no  opinion  upon  the  question  how  far 
that  is  a  correct  statement  of  the  law,  because  the  point  may  come 
before  the  Court  of  Appeal,  and  I  do  not  wish  to  fetter  myself  by 
saying  anything  on  the  subject  in  a  case  where  the  point  does  not 
arise  ;  but,  assuming  that  the  law  is  so,  it  must  be  on  the  ground 
that  under  such  a  guarantee  the  advances  are  not  made  in  pursuance 
of  a  request  made  once  for  all  by  the  parties  who  give  the  guaran- 
tee, but  in  pursuance  of  a  request  supposed  to  be  made  by  them 
from  time  to  time  as  the  advances  are  made,  and  that  if  before  any 
particular  advance  is  made  the  person  giving  the  guarantee  informs 
the  person  making  the  advance  that  he  withdraws  the  guarantee, 
the  advance  is  not  made  at  his  request,  and  he  therefore  is  not  liable 
for  it.     It  may  in  such  a  case  be,  although  I  give  no  opinion  upon 


696  ACTION  (right  of). 


No.  12.  —  Lloyd's  v.  Harper. 


it,  that  death  and  notice  of  death  are  sufficient  to  determine  a  guar- 
antee as  regards  subsequent  advances.  That,  however,  will  have  no 
application  to  a  case  where  the  consideration  given  by  Lloyd's  com- 
mittee was  given  once  for  all  by  admitting  the  son  into  this  associa- 
tion. When  that  was  done  there  was  no  power  on  the  part  of  Mr. 
Harper,  who  gave  the  guarantee  in  consideration  of  their  so  admit- 
ting the  son,  to  withdraw  from  the  contract  he  had  entered  into  to 
be  answerable  for  all  engagements  entered  into  by  his  son  as  an 
underwriting  member.  In  my  opinion  none  of  the  objections  can 
prevail,  and  this  appeal  must  be  dismissed. 

Lush,  L.  J.  The  primary  and  substantial  ground  of  defence  put- 
forward  here  is  that  the  guarantee  given  by  Mr.  Samuel  Harper  in 
consideration  of  his  son  being  admitted  as  an  underwriting  member 
of  Lloyd's  expired  with  his  death  on  notice  of  the  death  being  com- 
municated to  the  committee.  Now,  it  will  be  found,  I  think,  that 
guarantees  may,  for  the  purpose  of  this  case,  be  divided  into  two 
classes,  the  one  in  which  the  consideration  is  entire,  and  the  other 
in  which  the  consideration  is  fragmentary,  supplied  from  time  to 
time,  and  therefore  divisible.  An  instance  of  the  first  is  where  a 
person  enters  into  a  guarantee  that  in  consideration  of  the  lessor 
granting  a  lease  to  a  third  person  he  will  be  answerable  for  the 
performance  of  the  covenants.  The  moment  the  lease  is  granted, 
there  is  nothing  more  for  the  lessor  to  do ;  and  such  a  guarantee  as 
that  of  necessity  runs  on  throughout  the  dtiration  of  the  lease.  The 
lease  was  intended  to  be  a  guaranteed  lease,  and  it  is  impossible  to 
say  that  the  guarantor  could  put  an  end  to  the  guarantee  at  his 
pleasure,  or  that  it  could  be  put  an  end  to  by  his  death,  contrary  to 
the  manifest  intention  of  the  parties.  Another  illustration  of  it  is 
found  in  the  case  upon  which  Mr.  Justice  Fey  relied  (of  Calvert  v. 
Gordon,  3  Man.  &  Ry.  124),  which  is  one  of  a  precisely  similar  kind 
There  the  defendant,  in  consideration  that  the  plaintiff  would  take 
into  his  service  a  given  individual  as  collector  and  clerk  in  a  re- 
sponsible position,  guaranteed  that  he  would  be  answerable  for  his 
fidelity  as  long  as  he  continued  in  that  service.  It  was  held,  and, 
as  I  think,  rightly,  by  the  Court  of  Queen's  Bench,  that  that  guar- 
antee could  not  be  put  an  end  to  as  long  as  the  service  continued. 
The  consideration  there  was  admitting  the  young  man  into  the 
service  of  the  plaintiff  in  that  capacity,  and  that  being  done,  it  was 
to  be  a  guaranteed  service  as  long  as  he  remained  there.  The  guar- 
antee, therefore,  necessarily  continued  until  the  service  ended. 


SECT.  IV.  —  CONTRACT   WITH    THIRD    PERSON.  691 

No.  12.  —  Lloyd's  v.  Harper. 

Instances  of  the  second  class  are  more  familiar.  They  are  where 
a  guarantee  is  given  to  secure  the  balance  of  a  running  account  at 
a  banker's,  or  a  balance  of  a  running  account  for  goods  supplied. 
There  the  consideration  is  supplied  from  time  to  time,  and  it  is 
reasonable  to  hold,  unless  the  guarantee  stipulates  to  the  contrary, 
that  the  guarantor  may  at  any  time  terminate  the  guarantee.  He 
remains  answerable  for  all  the  advances  made  or  all  the  goods  sup- 
plied upon  his  guarantee  before  the  notice  to  determine  it  is  given ; 
but  at  any  time  he  may  say,  "  I  put  a  stop  to  this ;  I  do  not 
intend  to  be  answerable  any  further,  therefore  do  not  make  any 
more  advances  or  supply  any  more  goods  upon  my  guarantee."  As 
at  present  advised,  I  think  it  quite  competent  for  a  person  to  do 
that  where,  as  I  have  said,  the  guarantee  is  for  advances  to  be 
made  or  goods  to  be  supplied,  and  where  nothing  is  said  in  the 
guarantee  about  how  long  it  is  to  endure.  In  that  case,  as  at 
present  advised,  I  cannot  entertain  a  doubt  that  the  judgment  of 
Mr.  Justice  Bowen  in  Coulthart  v.  Clemcntson,  5  Q.  B.  D.  42,  is 
perfectly  right,  that  notice  of  the  death  of  the  guarantor  is  a  notice 
to  terminate  the  guarantee,  and  has  the  same  effect  as  a  notice 
given  in  the  lifetime  of  the  guarantor  that  he  would  put  an  end 
to  it. 

Now,  the  question  is,  to  which  class  does  the  guarantee  in  ques- 
tion here  belong  ?  Mr.  Harper  was  to  be  admitted  an  under- 
writing member  at  Lloyd's.  At  that  time  Lloyd's  was  not  an 
incorporated  body,  but  the  by-laws  then  in  force  made  no  provision 
whatever  for  Lloyd's  expelling  an  underwriting  member  when  once 
admitted,  except  for  some  default  or  crime  of  his  own  ;  there  was 
not  a  word  about  guarantee,  and  the  Act  which  incorporates  Lloyd's 
in  1871  itself  specifies  the  contingencies  upon  which  members  may 
be  expelled,  and  every  one  of  them  is  for  some  act  or  default  of  the 
underwriting  member  himself.  The  Act  authorises  the  society  to 
admit  a  member  upon  any  terms  they  think  proper,  but  it  does  not 
authorise  them  to  expel  a  member  when  once  admitted,  except,  as 
I  have  said,  for  the  specified  defaults  or  misdeeds  enumerated  in  the 
Act;  and  the  Act  expressly  says  that  no  by-laws  shall  be  made  by 
the  society  providing  for  exclusion  from  membership  of  the  society 
in  any  case.  It  followed,  therefore,  that  as  soon  as  this  young  gen- 
tleman was  admitted  he  acquired  a  right  to  remain  an  underwrit- 
ing member  until  by  some  act  or  default  of  his  own  he  forfeited  his 
right  to  that  position.     The  withdrawing  of  the  guarantee  would 


698  ACTION  (right  of). 


No.  12.  —  Lloyd's  v.  Harper. 


not  alter  his  status  ;  the  association  could  not  turn  him  out  on  that 
ground,  and  that  enables  us  to  put  a  meaning  upon  the  guarantee. 
The  guarantee  says,  "  I  beg  to  tender  my  guarantee  on  his  behalf, 
and  to  hereby  hold  myself  responsible  for  all  his  engagements  in 
that  capacity."  The  association  had  no  power  to  put  an  end  to  the 
son's  position  as  an  underwriting  member  until  he  had  by  some  act 
forfeited  his  right  to  that  position.  Of  necessity,  therefore,  the 
guarantee  must  endure  as  long  as  he  continued  an  underwriting 
member,  because  the  manifest  intention  of  the  parties  was  that  all 
his  enfrayeinents  as  an  underwriter  should  be  guaranteed  en<>ac;e- 
ments.  Therefore,  I  conclude  without  a  particle  of  doubt  that  this 
was  a  guarantee  which  the  guarantor  himself  could  not  put  an  end 
to,  and  which,  consequently,  was  not  put  an  end  to  by  his  death, 
but  that  it  must  endure  as  long  as  the  status  of  Robert  Henry 
Harper  as  an  underwriting  member  continues. 

Then  the  next  question  which,  no  doubt,  is  a  very  important  and 
substantial  one,  is,  that  Lloyd's,  having  sustained  no  damage  them- 
selves, could  not  recover  for  the  losses  sustained  by  third  parties 
by  reason  of  the  default  of  Robert  Henry  Harper  as  an  underwriter. 
That,  to  my  mind,  is  a  startling  and  an  alarming  doctrine,  and  a 
novelty,  because  I  consider  it  to  be  an  established  rule  of  law  that 
where  a  contract  is  made  with  A.  for  the  benefit  of  B.,  A.  can  sue 
on  the  contract  for  the  benefit  of  B.,  and  recover  all  that  B.  could 
have  recovered  if  the  contract  had  been  made  with  B.  himself. 
The  books  afford  innumerable  instances  of  the  application  of  this 
doctrine.  Lloyd's  policies,  from  the  time  that  Lloyd's  was  estab- 
lished, have  been  always  made  in  the  name  of  the  insurance  broker 
on  printed  forms.  The  broker  insures  for  the  benefit  of  all  whom 
it  may  concern,  and  the  broker  can  bring  an  action,  and  is  the  per- 
son to  sue  and  recover  according  to  the  interest  of  the  parties.  It 
is  true  that  the  person  who  employed  him  has  a  right,  if  he  pleases, 
to  take  action  himself  and  sue  upon  the  contract  made  by  the 
broker  for  him,  for  lie  is  a  principal  party  to  the  contract.  If  the 
subject-matter  of  the  policy  is  sold  with  the  benefit  of  the  policy, 
the  purchaser  cannot  sue,  because  he  was  not  a  party  to  the  con- 
tract ;  but  the  assured,  the  assignor,  may  in  this  case  sue  upon  the 
policy  for  the  benefit  of  the  person  to  whom  he  assigned  it.  That 
is  the  doctrine  which  runs  through  the  whole  of  our  law.  I  con- 
fess 1  heard  the  point  pressed  with  something  like  surprise.  I 
have  not  the  slightest  doubt  that  in  this  case  Lloyd's  could  recover. 


SECT.  IV.  —  CONTRACT    WITH    THIRD    PERSON.  699 

No.  13.  —  In  re  Empress  Engineering  Co. 

The  very  object  of  making  them  the  parties  to  the  contract  was 
that  they  should  recover  for  the  benefit  of  all  the  persons  who  had 
sustained  losses  upon  the  default  of  Robert  Henry  Harper. 

Then  there  were  other  questions  which  were  hardly,  I  think, 
seriously  pressed.  It  was  argued  that  "all"  engagements  here  did 
not  include  engagements  as  an  underwriter,  although  the  words  are 
"  all  his  engagements  in  that  capacity,"  —  that  is,  the  capacity  of  an 
underwriter,  —  but  that  the  words  only  meant  the  obligations  which 
every  member  incurs;  viz.,  to  pay  dues  and  subscriptions  to  the 
committee.  I  do  not  think  that  this  argument  needs  any  further 
answer  than  that  which  has  been  given  to  it  in  the  co.urse  of  the 
argument. 

There  is  this  one  other  point  as  to  the  right  of  the  corporation 
of  Lloyd's  to  sue.  I  think  what  Lord  Justice  Cotton  has  already 
said,  referring  to  the  terms  of  the  act  of  Parliament,  is  enough  to 
make  it,  to  my  mind,  perfectly  clear  that  all  the  rights  of  action 
which  at  the  time  the  Act  passed  were  vested  in  Lloyd's  committee, 
or  in  the  survivors  of  those  gentlemen  who  formed  the  committee 
when  this  contract  was  made,  passed  over  to  the  body  corporate, 
and  that  they  have  a  right  to  bring  an  action. 

I  think,  therefore,  on  every  ground,  the  judgment  of  Mr.  Justice 
Fry  ought  to  be  affirmed. 


In  re  Empress  Engineering  Co. 
10  Ch.  1).  1:25. 

This  was  an  appeal  by  -Jones  &  Pride  from  a  decision  of  the 
Vice-Chancellor  of  the  Court  of  Chancery  of  the  County  Palatine 
of  Lancaster. 

By  an  agreement  dated  the  2nd  of  May,  1879,  made  between 
Glasier  and  Archer  of  the  one  part,  and  J.  H.  T.  Cottier,  for  and 
on  behalf  of  a  company  intended  to  be  registered  as  a  limited 
company  and  to  be  called  "The  Empress  Engineering  Company," 
of  the  other  part,  reciting  that  Glasier  and  Archer  had  acquired 
the  right  of  manufacturing  "the  Empress  water  motor"  and  had 
for  some  time  past  carried  on  the  manufacture  thereof  upon  the 
premises  therein  mentioned,  and  that  the  memorandum  of  associa- 
tion of  the  company  had  been  prepared  and  that  the  nominal  capital 
was  to  be  £10,000  in  2000  shares  of  £5  each,  it  was  agreed  that 
<21asier  and  Archer  should  sell  and  the  company  should  purchase 


700  ACTION   (right  of). 


No.  13.  —  In  re  Empress  Engineering  Co. 


for  £3000,  to  be  discharged  in  600  fully  paid-up  shares  of  £5  each 
in  the  company,  all  the  right  of  the  vendors  to  manufacture  "  the 
Empress  water  motor,"  and  the  assets  of  the  business.  By  clause 
8  it  was  stipulated  that  the  costs  of  and  incidental  to  the  agree- 
ment, and  all  preliminary  and  other  costs,  charges,  and  outgoings, 
disbursements,  and  expenses,  either  before  or  after  the  company 
should  have  been  registered,  should  be  borne  and  paid  by  the 
company.  Clause  9 :  "  The  sum  of  sixty  guineas  shall  be  paid  to 
Messrs.  Jones  &  Pride,  solicitors,  Liverpool,  by  the  company  for 
the  incorporation  thereof,  such  sum  to  include  only  the  prepara- 
tion of  the  necessary  documents  and  printing  thereof  for  registration 
and  registration  fees  and  London  agents'  charges."  This  agreement 
was  duly  registered. 

The  company  was  incorporated  without  articles  under  a  memo- 
randum of  association,  dated  the  9th  of  May,  1879,  which  stated 
its  object  to  be,  (1)  to  give  effect  to  and  carry  into  execution  the 
above  agreement  of  the  2nd  of  May,  1879  ;  (2)  to  carry  on  the 
business  mentioned  in  the  agreement  and  generally  to  carry  on 
the  business  of  engineers  and  machine  makers.  Certain  further 
purposes  were  mentioned,  to  which  it  is  not  necessary  to  refer. 
The  liability  was  limited,  and  the  capital  was  fixed  at  £10,000, 
divided  into  2000  shares  of  £5  each. 

At  a  meeting  of  the  directors,  held  on  the  23rd  of  June,  1879, 
at  which  the  said  agreement  of  the  2nd  of  May  was  produced  and 
read,  a  resolution  was  carried  "  that  the  agreement  of  purchase  be 
ratified." 

Messrs.  Jones  &  Pride,  named  in  the  agreement,  acted  as 
solicitors  to  the  promoters  in  the  formation  of  the  company,  and 
after  its  registration  acted  as  solicitors  to  the  company. 

On  the  10th  of  December,  1879,  a  compulsory  order  for  winding 
up  the  company  was  made  on  the  petition  of  Jones  and  Pride  in 
the  Court  of  the  County  Palatine. 

Under  the  winding-up,  Jones  &  Pride  carried  in  a  claim  for 
£92  5s.  6d.,  being  the  amount  of  the  above-mentioned  £63  and 
£29  5s.  6d.  for  business  done  by  them  as  solicitors  to  the  company 
after  its  registration.  The  latter  amount  was  not  disputed,  but 
the  £63  was  objected  to.  The  matter  was  adjourned  to  be  heard 
before  the  Vice  Chancellor,  who  disnllowed  the  £63  and  admitted 
the  claim  for  £29  5s.  6<1.  only.     Jones  &  Pride  appealed. 

Snow,  for  the  Appellants.     I  submit  that  Jones  &  Pride  can 


SECT.  IV.  —  CONTKACT    WITH    THIRD    PERSON.  701. 

No.  13.  —  In  re  Empress  Engineering  Co. 

claim  the  benefit  of  this  contract,  on  the  ground  that  the  promoters 
were  trustees  of  it  for  them. 

[Jessel,  M.  R.  Jones  &  Pride  were  not  parties  to  the  con- 
tract, and  were  not  hound  by  it.  How  can  they  chain  the  benefit 
of  it?] 

The  circumstances  in  Gregory  v.  Williams,  3  Mer.  582,  were 
almost  identical  with  those  of  the  present  case. 

[Jessel,  M.  R.  In  that  case  Sir  W.  Grant  appears  to  have 
considered  that  there  was  a  declaration  of  trust.  I  know  of  no 
case  where,  when  A.  simply  contacts  with  B.  to  pay  money  to  C, 
C.  has  been  held  entitled  to  sue  A.  in  equity.] 

In  .Touche  v.  Metropolitan  Railvjay  Warehousing  Company, 
Law  Pep.  6  Ch.  671,  the  person  for  whose  benefit  the  agreement 
was  entered  into  was  held  entitled  to  sue. 

[Jessel,  M  R.  In  that  case  the  Lord  Chancellor  finds,  as  a 
fact,  that  Walker  was  to  receive  the  money  as  a  trustee  for  the 
plaintiffs.  If  you  can  make  out  that  Jones  &  Pride  are  cestuis  que 
trust,  that  alters  the  case.  It  appears  to  me  that  they  are  not. 
The  promoters  were  liable  to  Jones  &  Pride,  who  are  simply  their 
creditors.  A.  being  liable  to  B.,  C.  agrees  with  A.  to  pay  B. 
That  does  not  make  B.  a  cestui  que  trust.] 

The  cases  as  to  the  third  party  suing  are  collected  in  Pollock  on 
Contracts,  1st  Ed.  pp.  191,  192. 

[Brett,  L.  J.  How  do  you  make  out  any  contract  by  the 
company  ?] 

This  agreement  was  adopted  by  the  memorandum  of  association 
and  ratified  by  the  directors. 

[Brett,  L.  J.  As  to  ratification  of  an  agreement  made  before 
the  company  was  in  existence,  you  are  met  by  Melhado  v.  Porto 
Alegre,  &c.  Railway  Com  pan//,  Law  Rep.  9  C.  P.  503.] 

Vice  Chancellor  Malixs,  in  Spiller  v.  Paris  Skating  Rink  Com- 
pany,  7  Ch.  D.  368,  held  that  the  doctrine  of  that  case  was  not 
accepted  in  Courts  of  Equity. 

[Jessel,  M.  R.  In  Gregory  v.  Williams,  3  Mer.  582,  it  appears 
that  the  agreement  was  that  the  defendant  would,  "  out  of  the 
produce  "  of  the  property,  pay  what  was  due  to  Gregory  on  the 
promissory  note,  and  apply  the  residue,  so  far  as  the  same  would 
extend,  in  satisfaction  of  the  defendant's  demand,  and  pay  the  sur- 
plus (if  any)  to  Parker.  It  was  a  parol  agreement  part  performed, 
and  it  created  a  trust  of  property.] 


702  ACTION  (right  of). 


No.  13.  —  In  re  Empress  Engineering  Co. 


If  the  court  is  against  me  on  that  ground,  I  submit  that  the 
claimants  can  make  out  their  case  on  the  principle  of  In  re 
Hereford  and  South  Wales  Waggon  and  Engineering  Company* 
2  Ch.  D.  621,  where  it  was  held  that  there  was  a  good  equitable 
claim  for  services  rendered  before  the  formation  of  the  company, 
of  which  the  company  had  the  benefit. 

[James,  L.  J.  The  question  has  never  been  tried  whether  the 
company  has  had  the  benefit  of  the  claimant's  services. 

[Jessel,  M.  Pi.  That  is  a  question  of  quantum  meruit,  and  the 
subject  for  a  distinct  application.] 

Gazdar,  for  the  liquidator,  was  not  called  upon. 

Jessel,  M.  R.  I  must  say  that  I  do  not  see  how  it  was  possible 
for  the  Vice  Chancellor  to  have  decided  otherwise  than  he  did_ 
The  contract  between  the  promoters  and  the  so-called  agent  for 
the  company  of  course  was  not  a  contract  binding  upon  the  com- 
pany, for  the  company  had  then  no  existence,  nor  could  it  become 
binding  on  the  company  by  ratification,  because  it  has  beers 
decided,  and,  as  it  appears  to  me,  well  decided,  that  there  cannot 
in  law  be  an  effectual  ratification  of  a  contract  which  could  not 
have  been  made  binding  on  the  ratifier  at  the  time  it  was  made,, 
because  the  ratifier  was  not  then  in  existence.  It  does  not  follow 
from  that  that  acts  may  not  be  done  by  the  company  after  its 
formation  which  make  a  new  contract  to  the  same  effect  as  the 
old  one,  but  that  stands  on  a  different  principle.  I  am  of  opinion, 
therefore,  that  there  was  no  contract  binding  the  company  to  pay 
this  £63  to  Messrs.  Jones  &  Pride. 

Supposing,  however,  that  there  was,  it  is  then  contended  that  a 
mere  contract  between  two  parties  that  one  of  them  shall  pay  a 
certain  sum  to  a  third  person,  not  a  party  to  the  contract,  will  make 
that  third  person  a  cestui  que  trust.  As  a  general  rule  that  wilt 
not  be  so.  A  mere  agreement  between  A.  and  B.  that  B.  shall  pay 
C.  (an  agreement  to  which  C.  is  not  a  party  either  directly  or 
indirectly)  will  not  prevent  A.  and  B.  from  coming  to  a  new  agree- 
ment the  next  day,  releasing  the  old  one.  If  C.  were  a  cestui  que 
trust,  it  would  have  that  effect.  I  am  far  from  saying  that  there- 
may  not  be  agreements  which  may  make  C.  a  cestui  que  trust- 
There  may  be  an  agreement  like  that  in  Gregory  v.  Williams,  % 
Mer.  582,  where  the  agreement  was  to  pay  out  of  property,  and 
one  of  the  parties  to  the  agreement  may  constitute  himself  a 
trustee  of  the  property  for  the  benefit  of  the  third    party.     So,. 


SECT.  IV.  —  CONTRACT   WITH    THIRD    PERSON.  703 

No.  13.  —  la  re  Empress  Engineering  Co. 

again,  it  is  quite  possible  that  one  of  the  parties  to  the  agreement 
may  be  the  nominee  or  trustee  of  the  third  person.  As  Lord 
Justice  James  suggested  to  me  in  the  course  of  the  argument,  a 
married  woman  may  nominate  somebody  to  contract  on  her  behalf, 
hut  then  the  person  makes  the  contract  really  as  trustee  for  some- 
body else;  and  it  is  because  he  contracts  in  that  character  that  the 
cestui  que  trust  can  take  the  benefit  of  the  contract.  It  appears 
to  me,  therefore,  that  on  both  the  grounds  mentioned  by  the  Vice 
Chancellor  this  claim  cannot  be  supported. 

There  is  another  ground  suggested,  —  namely,  that  as  the  company 
has  had  the  benefit  of  the  registration  they  ought  to  pay  for  it. 
But  the  answer  to  that  is  this :  that  was  not  the  claim  brought 
forward.  The  claim  brought  forward  was  for  an  agreed  sum  of 
£63,  and  any  order  we  make  (I  do  not  know  whether  it  is  neces- 
sary to  express  it)  will  not  prejudice  that  claim,  which  is  merely 
for  an  amount  due  for  services,  the  benefit  of  which  has  been  taken 
by  the  company. 

James,  L.  J.  I  am  entirely  of  the  same  opinion. 
I  think  it  is  perhaps  as  wrell  that  we  should  say  that  Gregory 
v.  Williams  seems  to  be  misunderstood.  "When  that  case  is  con- 
sidered with  the  careful  criticism  with  which  the  Master  of  the 
Eolls  has  examined  it,  it  appears  quite  clear  that  there  was  there 
a  transfer  of  property  with  a  declaration  of  trust  in  favour  of  a 
third  person,  which  was  a  totally  different  thing  from  a  mere 
covenant  to  pay  money  to  that  person.  As  regards  the  other 
point,  notwithstanding  what  was  said  by  Vice  Chancellor  Malins 
in  Spillerv.  Paris  Ska  ting  Rink  Company,  7  Ch.  D.  368,  it  appears 
to  me  that  it  is  settled,  both  in  the  Courts  of  Law  and  by  us  in 
the  Court  of  Appeal  in  that  case  to  which  we  have  been  referred 
(of  In  re  Hereford  and  South  Wales  Waggon  and  Engineering  Com- 
pany, 2  Ch.  D.  621),  that  a  company  cannot  ratify  a  contract  made 
on  its  behalf  before  it  came  into  existence,  —  cannot  ratify  a 
nullity.  The  only  thing  that  results  from  what  is  called  ratifica- 
tion or  adoption  of  such  a  contract  is  not  the  ratification  or 
adoption  of  a  contract  qua  contract,  but  the  creation  of  an  equita- 
ble liability  depending  upon  equitable  grounds.  It  is  inequitable 
for  a  man  not  to  pay  for  the  services  of  which  he  has  taken  the 
benefit.  That  was  the  only  ground  upon  which  we  held  that,  in 
that  case,  Walter  and  Head  would  have  had  a  claim  for  services 
before  the  registration    of   the   company,   had    not   an   equitable 


704  ACTION  (right  of). 


Nos.  12,  13.  —  Lloyd's  v.  Harper,  &c.  —  Notes. 


defence  been  effectually  set  up  on  the  ground  of  a  fraudulent  con- 
cealment of  the  agreement. 

Brett,  L.  J.     I  am  of  the  same  opinion. 

James,  L.  J.  The  appeal  will  be  dismissed  with  costs.  It  will 
be  without  prejudice  to  any  equitable  claim  on  a  quantum  meruit. 
I  may  add,  as  the  Master  of  the  Rolls  pointed  out  to  me  in  the 
eourse  of  the  argument,  that  in  Gregory  v.  Williams,  3  Mer.  582, 
the  man  with  whom  the  contract  was  made  was  one  of  the  plain- 
tiffs ;  and  the  only  defence  there  would  have  been  misjoinder  of 
plaintiffs,  and  that  is  a  defence  which  the  court  was  not  likely  to 
view  with  much  favour. 

ENGLISH    NOTES. 

The  judgment  of  Lord  Justice  James  in  Lloyd's  v.  Harper,  on  the 
point  of  substantial  damages,  is  cited  at  length  by  North.  J.,  in  a  judg- 
ment affirmed  by  the  Court  of  Appeal,  in  In  re  Flavell,  Murray  v.  Flavell 
(1883),  25  Ch.  D.  89,  97;  53  L.  J.  Ch.  185,— a  case  in  which,  under 
a  partnership  deed,  executors  of  a  deceased  partner  were  to  receive  out  of 
the  profits  of  the  business  a  certain  annual  sum,  to  be  applied  as  the  de- 
ceased should  direct  for  benefit  of  his  widow;  and  it  was  held  that  there 
was  a  trust,  so  that  the  widow  was  entitled  to  the  annuity  free  from  the 
claims  of  creditors. 

In  Gandy  v.  Gandy  (C.  A.  1881),  30  Ch.  D.  57;  54  L.  J.  Ch.  1154, 
both  the  ruling  cases  were  cited  and  considered.  The  question  arose 
upon  a  separation  deed,  whereby  the  husband  covenanted  with  the  trus 
tees  to  pay  them  an  annuity  for  the  use  of  his  wife  and  two  eldest  daugh- 
ters, and  also  to  pay  to  the  trustees  the  expenses  of  the  maintenance  and 
education  of  the  two  youngest  daughters.  In  an  action  by  one  of  the 
youngest  daughters  against  the  husband,  who  had  refused  any  longer  to 
maintain  her,  it  was  held  that  there  was  not,  under  the  covenant,  a  trust 
in  favour  of  the  plaintiff  so  as  to  entitle  her  to  maintain  the  action;  but, 
the  wife  having  been  afterwards  joined  as  a  co-plaintiff  (the  trustees 
refusing  to  be  so  joined),  it  was  held  that  by  the  intention  of  the  deed 
the  trustees  were  trustees  for  her.  and  that  she  was  in  equity  entitled 
to  call  upon  the  husband  for  the  performance  of  the  covenants,  and  to 
maintain  the  action  accordingly. 

The  observations  of  the  Lord  Chancellor  (Campbell)  in  Robertson 
v.  Fleming  (a  Scotch  Appeal.  1861),  4  Macq.  177,  though  not  cited  in 
the  reports  of  either  of  the  above  ruling  cases,  seem  relevant  to  the  sub- 
ject. "I  never  had  any  doubt.''  he  says,  "of  the  unsoundness  of  the 
doctrine  .  .  .  that  A.  employing  lb.  a  professional  lawyer,  to  do  any 
act  for  the  benefit  of  C.,  if,  through  the  gross  negligence  or  ignorance 


SECT.  IV. CONTRACT    WITH    THIRD    PERSON.  705 

Nos.  12,  13.  —  Lloyd's  v.  Harper,  &,c.  —  Notes. 

of  B.  in  transacting  the  business,  C.  loses  the  benefit  intended 
for  him  by  A..  C.  may  maintain  an  action  against  15.  and  recover 
damages  for  the  loss  sustained.  If  this  were  law,  a  disappointed 
legatee  might  sue  the  solicitor  employed  by  a  testator  to  make  a 
will  in  favour  of  a  stranger^  whom  the  solicitor  never  saw  or  before 
heard  of,  if  the  will  were  void  for  not  being  properly  signed  and  at- 
tested. .  .  .  But  if  in  a  transaction  of  borrowing  and  lending  money 
on  security,  A.,  the  borrower,  employs  B.,  a  professional  lawyer,  to 
transact  the  business,  in  which  both  A.,  the  borrower,  and  C,  the 
lender,  have  their  separate  interests,  and  for  which  A.  alone  is  to  pay 
B.,  although  C.  has  no  personal  intercourse  with  B.,  if  from  the  instruc- 
tions expressly  given  by  A.  to  B.,  or  from  the  usual  course  in  which 
such  business  is  conducted,  B.  knows  that  he,  and  no  other  professional 
lawyer,  is  employed  in  the  transaction,  and  that  B.  is  to  act  both  for  A. 
and  for  C.  in  preparing  the  security,  I  apprehend  that  a  jury,  from  this 
employment  of  B.,  might  infer  an  undertaking  from  B.  to  C.  to  conduct 
the  transaction  on  his  part  with  reasonable  skill  and  diligence.  And  so 
if,  in  the  transaction  of  a  loan  on  security,  C.  was  a  surety  for  the 
borrower,  and,  according  to  the  transaction,  as  explained  by  A.  to  B., 
0.  was  to  have  a  counter  security  from  A.  to  be  prepared  and  completed 
by  B.  for  C,  as  the  only  lawyer  to  be  employed  between  them,  a  simi- 
lar undertaking  from  B.  to  C.  may  be  inferred." 

AMERICAN   NOTES. 

The  doctrine  declared  by  the  jirincipal  cases  was  adopted  in  most  of  the 
early  cases  and  in  a  few  recent  cases  in  this  country,  hut  has  been  discarded 
in  most  of  the  recent  decisions.  The  early  doctrine  is  found  substantially  in 
Juiss  v.  Milne,  12  Leigh  (Virginia),  204;  37  Am.  Dec.  (546;  Seaman  v.  Whitney, 
24  Wendell  (New  York),  260;  35  Am.  Dec.  618;  Haskett  v.  Flint,  5  Blackford 
(Indiana),  69;  33  Am.  Dec.  452;  Hall  v.  Carpen,  27 Illinois,  386;  81  Am.  Dec. 
234;  Rossman  v.  Townsend,  17  Wisconsin,  98;  84  Am.  Dec.  733;  Tuttlev.  Cat- 
lin,  1  D.  Chipman  (Connecticut),  366;  12  Am.  Dec.  691  ;  Fugure  v.  Mut.  Soc, 
4(5  Vermont,  362;  Mellen  v.  Whipple,  1  Gray  (Mass.),  317;  Exchange  Bant  v. 
Rice,  107  Massachusetts,  37  ;  9  Am.  Rep.  1  ;  Roger*  v.  Union  Stone  Co.,  1:50 
Massachusetts,  581 ;  39  Am.  Rep.  478;  Meech  v.  Ensign,49  Conn.  191  ;  44  Am. 
Rep.  225. 

Mr.  Lawson,  the  latest  writer  on  contracts,  says  (Contracts,  §  113  (d)): 
"  The  modern  American  rule  is  that  where  a  person  makes  a  promise  to 
another  for  the  benefit  of  a  third  person,  the  latter  may  maintain  an  action 
upon  it."  This  is  supported  by  Schermerhorn  v.  Vanderheyden,  1  Johnson 
(New  York),  139:  3  Am.  Dec.  304  (A.  I).  1806),  and  has  been  adopted  in  Law- 
rence v.  Fox,  20  New  York,  268,  the  leading  American  case  on  the  subject. 
The  doctrine  of  this  case,  although  laid  down  by  a  divided  court,  and  although 
the  decision  has  been  distinguished  and  limited,  was  affirmed  unanimously  in 
Burr  v.  Beers,  21  New  York,  178;  80  Am.  Dec.  -'527,  and  must  be  regarded  as 
vor..  i.  —  45 


706  ACTION    (RIGHT   OF). 


No.  14.  —  Lumley  v.  Gye.  —  Rule. 


settled  in  that  State.  See  Barlow  v.  Myers,  64  New  York,  41 ;  21  Am.  Rep. 
5S2.  The  facts  in  Lawrence  v.  Fox  were  these:  Holly  lent  Fox  money, which 
Fox,  in  consideration  of  the  loan,  agreed  at  the  time  of  the  loan  to  pay  the 
next  day  to  Lawrence  upon  a  debt  which  Holly  owed  him.  It  was  held  that 
Lawrence  could  sue  Fox  upon  that  agreement,  although  he  was  in  no  way 
privy  to  it.  The  court  said:  "  The  consideration  received,  and  the  promise 
to  Holly  made,  it  as  plainly  his  duty  to  pay  the  plaintiff  as  if  the  money  had 
been  remitted  to  him  for  that  purpose,  and  as  well  implied  a  promise  to  do  so 
as  if  he  had  been  made  a  trustee  of  property  to  be  converted  into  cash  with 
which  to  pay."  The  argument  that  Holly  could  have  discharged  the  defen- 
dant from  his  promise  was  practically  answered  by  the  statement  that  he  did 
not  release  him,  and  that  he  could  not  do  so  if  Lawrence  had  taken  action  on 
the  promise.  Comstock  and  Grovkr,  J.  J.,  dissented.  See  Little  v.  Banks, 
85  New  York,  258;  Hand  v.  Kennedy,  83  id.,  150;  Seward  v.  Huntington,  91 
id.,  104  ;  Wheat  v.  Rice,  97  id.,  296  ;  Campbell  v.  Smith,  71  id.,  26 ;  27  Am.  Rep.  5 ; 
Hutchings  v.  Miner,  46  New  York,  456 ;  7  Am.  Rep.  309. 

This  doctrine  is  also  the  rule  in  Mason  v.  Hall,  30  Alabama,  601  ;  Treat  v. 
Stanton,  14  Connecticut,  451;  Morgan  v.  Overman  Co.,  37  California,  537; 
Arnold  v.  Lyman,  17  Massachusetts,  400;  9  Am.  Dec.  151 ;  Johannes  v.  Phenix 
Ins.  Co.,  66  Wisconsin,  50  ;  57  Am.  Rep.  249  ;  Joslin  v.  Car  Co.,  36  New  Jersey 
T>a\v,  141 ;  Jones  v.  Thomas,  21  Grattan  (Virginia),  101 ;  Bristoio  v.  Lane,  21  Illi- 
nois, 194;  Bohanon  v.  Pope,  42  Maine,  96  ;  Blymire  v.  Boistle,  0  Watts  (Penn.), 
162 ;  31  Am.  Dec.  458 ;  Cox  v.  Skeen,  2  Iredell  (No.  Carolina),  220  ;  38  Am.  Dec. 
691;  Brewer  v.  Maurer,  38  Ohio  St.  513;  43  Am.  Rep.  437  ;  Brown  v.  O'Brien, 
1  Richardson  Law  (So.  Carolina),  268;  44  Am.  Dec.  254;  Bobbins  v.  Ayres,  10 
Missouri,  538  ;  47  Am.  Dec.  125;  Allen  v.  Thomas,  3  Metcalfe  (Kentucky),  198; 
77  Am.  Dec.  169;  West  v.  West.  Un.  Tel.  Co.,  39  Kansas,  93;  7  Am.  St.  Rep. 
530.  See  also  duplicate  cases,  with  notes,  6  Am.  Dec.  708  ;  15  id.  172  ;  17  id. 
206;  24  id.  325;  26  id.  107;  44  id.  137  :  45  id.  727;  58  id.  713. 

The  only  very  influential  State  manifesting  any  tendency  to  adhere  to  the 
common-law  ride  is  Massachusetts,  in  which  it  will  be  seen  that  fine  distinc- 
tions are  drawn  and  the  general  proposition  is  mooted. 


No.  14  —  LUMLEY   v.   GYE. 

(q.  b.  1853.) 

No.  15.  — BOWEN   v.   HALL. 

(C.    A.    FROM    Q.    B.    D.    1891.) 
RULE. 

Wiiere  there  is  a  contract  between  two  persons  for 
exclusive  personal  service  to  be  rendered  by  the  one  to  the 
other,  an  action  lies  against  a  third  person  (not  a  party  to 


SECT.  IV.  —  CONTRACT    WITH    THIRD    PEBSON.  707 

No.  14.  —  Lumley  v.  Gye. 

the  contract)  who  intentionally  induces  the  former  party 
to  break  his  contract  so  as  to  cause,  as  the  natural  conse- 
quence of  the  breach,  loss  to  the  other. 

Lumley  v.  Gye. 

•2  E.  &  B.  216. 

The  first  count  of  the  declaration  stated  that  plaintiff  was 
lessee  and  manager  of  the  Queen's  Theatre,  for  performing  operas 
for  gain  to  him ;  and  that  he  had  contracted  and  agreed  with 
Johanna  Wagner  to  perform  in  the  theatre  for  a  certain  time,  with 
a  condition,  amongst  others,  that  she  should  not  sing  nor  use  her 
talents  elsewhere  during  the  term  without  plaintiffs  consent  in 
writing:  yet,  defendant,  knowing  the  premises,  and  maliciously 
intending  to  injure  plaintiff  as  lessee  and  manager  of  the  theatre, 
whilst  the  agreement  with  Wagner  was  in  force,  and  before  the 
expiration  of  the  term,  enticed  and  procured  Wagner  to  refuse  to 
perform;  by  means  of  which  enticement  and  procurement  of 
defendant,  Wagner  wrongfully  refused  to  perform,  and  did  not 
perform  during  the   term. 

Count  2.  For  enticing  and  procuring  Johanna  Wagner  to  continue 
to  refuse  to  perform  during  the  term,  after  the  order  of  Vice 
Chancellor  Parker,  affirmed  by  Lord  St.  Leonards,  see  Lumley 
v.  Wagner,  1  De  G.  McN.  &  G.  604,  restraining  her  from  perform- 
ing at  a  theatre  of  defendants. 

Count  3.  That  Johanna  Wagner  had  been  and  was  hired  by 
plaintiff  to  sing  and  perform  at  Ins  theatre  for  a  certain  time,  as  the 
dramatic  artiste  of  plaintiff,  for  reward  to  her,  and  had  become  and 
was  such  dramatic  artiste  of  plaintiff  at  his  theatre  :  yet  defendant, 
well  knowing,  &c,  maliciously  enticed  and  procured  her,  then  being 
such  dramatic  artiste,  to  depart  from  the.  said  employment. 

In  each  count  special  damage  was  alleged. 

Demurrer.     Joinder. 

The  demurrer  was  argued  in  the  sittings  after  Hilary  Term  last, 
February  4  and  5,  1853,  before  Coleridge,  Wightman,  Erle,  and 
Crompton,  JJ. 

Willes  for  the  defendant.  The  counts  disclose  a  breach  of 
contract  on  the  part  of  Wagner,  for  which  the  plaintiff's  remedy  is 
by  an  action  on  the  contract  against  her.  The  relation  of  master 
and  servant  is  peculiar;   and,  though   it  originates  in  a  contract 


708  ACTION  (right  of). 


No.  14.  —  Lumley  v.  Gye. 


between  the  employer  and  the  employed,  it  gives  rise  to  rights 
and  liabilities,  on  the  part  of  the  master,  different  from  those  which 
would  result  from  any  other  contract.  Thus,  the  master  is  liable 
for  the  negligence  of  his  servant,  whilst  an  ordinary  contractor  is 
not  liable  for  that  of  the  person  with  whom  he  contracts.  And  a 
master  may  lawfully  defend  his  servant  when  a  contractor  may  not 
defend  his  contractee.  And  so  a  master  may  bring  an  action  for 
enticing  away  his  servant.  But  these  are  anomalies,  having  their 
origin  in  times  when  slavery  existed.  They  are  intelligible  on  the 
supposition  that  the  servant  is  the  property  of  his  master ;  and, 
though  they  have  been  continued  long  after  all  but  free  service  has 
ceased,  they  are  still  confined  to  cases  where  the  relation  of  master 
and  servant,  in  the  strict  sense,  exists.  In  the  present  case,  Wag- 
ner is  a  dramatic  artiste,  not  a  servant  in  any  sense.  (It  is  unnec- 
essary to  report  the  argument  for  the  defendant  further  in  detail, 
as  the  points  made  in  it,  and  the  authorities  relied  upon,  are  fully 
stated  in  the  judgments  of  CROMPTON,  J.,  and  WlGHTMAN,  J.) 

Cowling,  contra.  The  general  principle  is  laid  down  in  Corny ns's 
Digest,  Action  upon  the  Case  (A).  "  In  all  cases,  where  a  man 
has  a  temporal  loss,  or  damage  by  the  wrong  of  another,  he  may 
have  an  action  upon  the  case,  to  be  repaired  in  damages."  In 
Comyns's  Digest,  Action  upon  the  Case  for  Misfeasance  (A  6),  an 
instance  is  given  :  "  If  he  threaten  the  tenants  of  another,  whereby 
they  depart  from  their  tenures,"  citing  1  Eol.  Abr.  108,  Action 
sur  Case  (N)  pi.  21.  An  action  lies  for  procuring  plaintiff's  wife 
to  remain  absent;  Winsmore  v.  GreenhanJc,  Willes, 577.  An  action 
lay  for  ravishment  of  ward;  and,  if  "a  man  procureth  a  ward  to 
go  from  his  guardian,  this  is  a  ravishment  in  law;"  2  Inst.  440. 
Now,  as  neither  the  tenants,  the  wife,  nor  the  ward  are  servants, 
it  cannot  be  said  that  the  action  for  procurement  is  an  anomaly 
confined  to  the  case  of  master  and  servant.  "Every  master  has 
by  his  contract  purchased  for  a  valuable  consideration  the  services 
of  his  domestics  for  a  limited  time  ;  the  inveigling  or  hiring  his 
servant,  which  induces  a  breach  of  this  contract,  is  therefore  an 
injury  to  the  master;  and  for  that  injury  the  law  has  given  a 
remedy  by  a  special  action  on  the  case;  and  he  may  also  have  an 
action  against  the  servant  for  the  non-performance  of  his  agree- 
ment;"' 3  Bl.  Com.  142.  Blachstone  thus  treats  the  action  by  a 
master  as  an  example  of  a  general  rule  that  "  inducing  a  breach  of 
contract "  is  an  injury  for  which  an  action  lies.     And  surely,  any 


SECT.  IV.  —  CONTRACT   WITH    THIRD    PERSON.  709 

No.  14.  —  Lumley  v.  Gye. 

one,  not  a  lawyer,  would  agree  that  the  malicious  and  intentional 
procurement  of  a  breach  of  contract  was  a  wrong,  and  that  the 
breach  of  contract  intended  to  be  procured  was  the  direct  conse- 
quence of  that  wrongful  procurement.  Green  v.  Button,  '1  C.  M. 
&  R.  707,  is  apparently  an  authority  for  that  larger  proposition  ; 
and  so  is  Sheperd  v.  Wakeman,  1  Sid.  79.  It  is  not  accurate  to 
say  that  the  remedy  for  breach  of  contract  is  confined  to  those 
privy  to  the  contract, —  Levy  v.  Langridge,  4  M.  &  W.  337,  affirm- 
ing the  judgment  of  the  Exchequer  in  Langridge  v.  Levy,  2  M.  & 
W.  519.  In  that  case  the  son  recovered  though  the  warranty  was 
to  the  father.  It  is  true  that  the  damage  to  the  plaintiff  must  be 
the  natural  and  immediate  consequence  of  the  wrong  of  the  defen- 
dant, and  that  it  is  not  often  that  the  unjustifiable  act  of  an  inde- 
pendent party  is  the  natural  consequence  of  that  wrong ;  but, 
when,  as  on  this  demurrer  must  be  taken  to  be  the  fact,  the 
defendant  uses  the  contracting  party  as  his  tool  to  break  the  con- 
tract to  the  damage  of  the  plaintiff,  why  should  he  not  be  an- 
swerable for  the  damage  he  thus  intentionally  produces?  The 
procurement  may  in  some  cases  be  privileged,  just  as  a  libel  or 
slander  may  be ;  but  here  it  is  malicious.  It  is,  however,  unneces- 
sary to  go  so  far  in  this  case,  as  the  contract  is  for  exclusive 
personal  services,  and  the  authorities  are  clear  that  in  such  cases 
the  action  lies.  (The  arguments  for  the  plaintiff  on  this  part  of 
the  case,  and  the  authorities  cited,  are  so  fully  stated  in  the 
judgments  that  it  is  unnecessary  to  repeat  them  here.) 

Willes,  in  reply.  The  averment  of  malice  can  make  no  differ- 
ence. If  the  action  does  not  lie  without  malice,  it  does  not  lie 
with  it ;  and  malice  is  never  averred  in  actions  for  seducing 
servants.  The  passage  cited  from  Comyns's  Digest,  Action  upon 
the  Case  (A),  does  not  throw  much  light  on  the  matter.  It  is  not 
disputed  that  damage  resulting  from  a  wrong  gives  a  cause,  of 
action ;  but  the  defendant's  point  is  that  the  act  complained  of  is 
not  a  wrong  within  the  technical  meaning  of  the  word:  and  this 
is  an  instance  of  the  rule,  "ex  damno  sine  injuria  non  oritur  actio." 
The  instances  cited,  as  supporting  the  general  proposition,  all 
range  themselves  under  some  well  known  class  of  wrongs.  The 
reference  in  Comyns's  Digest,  Action  upon  the  Case  for  Misfeasance 
(A  6),  is  to  1  Roll.  Ad.  108,  Action  sur  Case  (N),  pi.  21,  where  it 
appears  that  the  menaces  were  to  "tenants  at  will,  of  life  and 
limb."     The    tenants,  therefore,  were    not   hound  to  remain  ;  and 


710  ACTION    (RIGHT   CF). 


No.  14.  —  Lumley  v.  Gye. 


the  threats  of  life  and  limb  must  have  been  an  interference  with 
the  plaintiff's  property.  Ravishment  of  ward  also  proceeds  on  the 
ground  that  the  guardian  had  a  property  in  his  ward.  Winsmore 
v.  Greenbank,  Willes,  577,  extends  the  law  as  to  enticing  servants 
to  enticing  a  wife ;  but  the  principle  is  the  same.  The  common 
law  considers  the  wife  the  property  and  servant  of  the  husband. 
In  Sheperd  v.  Wakeman,  1  Sid.  79,  the  action  was  for  asserting 
that  the  plaintiff  was  already  married,  per  quod  she  lost  her 
marriage ;  but  to  assert  that  a  woman  is  about  to  commit  bigamy 
is  actionable  per  se.  Levy  v.  Larigridge,  -i  M.  &  W.  337,  was  decided 
on  the  ground  that  there  was  what  was  equivalent  to  a  fraudulent 
representation  to  the  plaintiff  as  to  an  article  which  he  was  to  use. 
The  act  complained  of  in  Green  v.  Button,  2  C.  M.  &  R  707,  was 
also  a  wrong  in  itself.  The  injury  done  was  analogous  to  slander 
of  title.  (The  argument  in  reply,  as  to  the  effect  of  the  contract 
being  for  exclusive  service,  is  sufficiently  shown  by  the  judg- 
ments.) Cur.  adv.  vult. 

The  Court  were  divided  in  opinion,  and  delivered  their  opinions 
seriatim  ;  Wightman,  J.,  Ei;le  and  Crompton.  J.T.,  holding  that  all 
the  counts  were  good;  Coleridge,  J.,  on  the  contrary,  being  of 
opinion  that  the  action  could  not  be  maintained.  In  accordance 
with  the  opinion  of  the  majority,  judgment  was  given  for  the 
plaintiff.  The  reasons  of  the  opinions  of  the  majority  sufficiently 
appear  from  the  judgment  of 

Crompton,  J.  The  declaration  in  this  case  consisted  of  three 
counts.  The  two  first  stated  a  contract  between  the  plaintiff,  the 
proprietor  of  the  Queen's  Theatre,  and  Miss  Wagner,  for  the  per- 
formance by  her  for  a  period  of  three  months  at  the  plaintiff's 
theatre;  and  it  then  stated  that  the  defendant,  knowing  the 
premises  and  with  a  malicious  intention,  whilst  the  agreement  was 
in  full  force,  and  before  the  expiration  of  the  period  for  which 
Miss  Wagner  was  engaged,  wrongfully  and  maliciously  enticed 
and  procured  Miss  Wagner  to  refuse  to  sing  or  perform  at  the 
theatre,  and  to  depart  from  and  abandon  her  contract  with  the 
plaintiff  and  all  service  thereunder,  whereby  Miss  Wagner  wrong- 
fully, during  the  full  period  of  the  engagement,  refused  and 
made  default  in  performing  at  the  theatre  ;  and  special  damage 
arising  from  the  breach  of  Miss  Wagner's  engagement  was 
then  stated.     The  third  count  stated  that  Miss  Warnier  had  been 


SECT.  IV.  —  CONTRACT    WITH    THIRD    PERSON.  7ll 

No.  14.  —  Lumley  v.  Gye. 

hired  and  engaged  by  the  plaintiff,  then  being  the  owner  of  Her 
Majesty's  Theatre,  to  perform  at  the  said  theatre  for  a  certain 
specified  period  as  the  dramatic  artiste  of  the  plaintiff  for  reward 
to  her  in  that  behalf,  and  had  become  and  was  such  dramatic 
artiste  for  the  plaintiff  at  his  said  theatre  for  profit  to  the  plaintiff 
in  that  behalf;  and  that  the  defendant,  well  knowing  the  premises 
and  with  a  malicious  intention,  whilst  Miss  Wagner  was  such 
artiste  of  the  plaintiff,  wrongfully  and  maliciously  enticed  and 
procured  her,  so  being  such  artiste  of  the  plaintiff,  to  depart  from 
and  out  of  the  said  employment  of  the  plaintiff,  whereby  she 
wrongfully  departed  from  and  out  of  the  said  service  and  employ- 
ment of  the  plaintiff,  and  remained  and  continued  absent  from 
such  service  and  employment  until  the  expiration  of  her  said 
hiring  and  engagement  to  the  plaintiff  by  effluxion  of  time;  and 
special  damage  arising  from  the  breach  of  Miss  Wagner's  engage- 
ment was  then  stated.  To  this  declaration  the  defendant  de- 
murred: and  the  question  for  our  decision  is,  Whether  all  or  any 
of  the  counts  are  good  in  substance  ? 

The  effect  of  the  two  first  counts  is,  that  a  person  under  a  bind- 
ing contract  to  perform  at  a  theatre  is  induced  by  the  malicious 
act  of  the  defendant  to  refuse  to  perform  and  entirely  to  abandon 
her  contract;  whereby  damage  arises  to  the  plaintiff,  the  proprietor 
of  the  theatre.  The  third  count  differs  in  stating  expressly  that 
the  performer  had  agreed  to  perform  as  the  dramatic  artiste  of  the 
plaintiff,  and  had  become  and  was  the  dramatic  artiste  of  the  plain- 
tiff for  reward  to  her;  and  that  the  defendant  maliciously  procured 
her  to  depart  out  of  the  employment  of  the  plaintiff  as  such 
dramatic  artiste  ;  whereby  she  did  depart  out  of  the  employment 
and  service  of  the  plaintiff;  whereby  damage  was  suffered  by  the 
plaintiff.  It  was  said,  in  support  of  the  demurrer,  that  it  did  not 
appear  in  the  declaration  that  the  relation  of  master  and  servant 
ever  subsisted  between  the  plaintiff  and  Miss  Wagner ;  that  Miss 
Wagner  was  not  averred,  especially  in  the  two  first  counts,  to  have 
entered  upon  the  service  of  the  plaintiff;  and  that  the  engagement 
of  a  theatrical  performer,  even  if  the  performer  has  entered  upon 
the  duties,  is  not  of  such  a  nature  as  to  make  the  performer  a  ser- 
vant, within  the  rule  of  law  which  gives  an  action  to  the  master 
for  the  wrongful  enticing  away  of  his  servant.  And  it  was  laid 
down  broadly,  as  a  general  proposition  of  law,  that  no  action  will 
lie  for  procuring  a  person  to  break  a  contract,  although  such  pro- 


ACTION    (RIGHT   OF). 


No.  14.  —  Lumley  v.  Gye. 


curing  is  with  a  malicious  intention  and  causes  great  and  imme- 
diate  injury.  And  the  law  as  to  enticing  servants  was  said  to  be 
contrary  to  the  general  rule  and  principle  of  law,  and  to  be  anoma- 
lous, and  probably  to  have  had  its  origin  from  the  state  of  society 
when  serfdom  existed,  and  to  be  founded  upon,  or  upon  the -equity 
of,  the  Statute  of  Labourers.  It  was  said  that  it  would  be  danger- 
ous to  hold  that  an  action  was  maintainable  for  persuading  a  third 
party  to  break  a  contract,  unless  some  boundary  or  limits  could  be 
pointed  out ;  and  that  the  remedy  for  enticing  away  servants  was 
confined  to  cases  where  the  relation  of  master  and  servant,  in  a 
strict  sense,  subsisted  between  the  parties ;  and  that,  in  all  other 
cases  of  contract,  the  only  remedy  was  against  the  party  breaking 
the  contract. 

Whatever  may  have  been  the  origin  or  foundation  of  the  law  as 
to  enticing  of  servants,  and  whether  it  be,  as  contended  by  the 
plaintiff,  an  instance  and  branch  of  a  wider  rule,  or  whether  it 
be,  as  contended  by  the  defendant,  an  anomaly  and  an  exception 
from  the  general  rule  of  law  on  such  subjects,  it  must  now  be 
considered  clear  law  that  a  person  who  wrongfully  and  maliciously, 
or,  which  is  the  same  thing,  with  notice,  interrupts  the  relation 
subsisting  between  master  and  servant  by  procuring  the  servant  to 
depart  from  the  master's  service,  or  by  harbouring  and  keeping 
him  as  servant  after  he  has  quitted  it  and  during  the  time  stipu- 
lated for  as  the  period  of  service,  whereby  the  master  is  injured, 
commits  a  wrongful  act  for  which  he  is  responsible  at  law.  I 
think  that  the  rule  applies  wherever  the  wrongful  interruption 
operates  to  prevent  the  service  during  the  time  for  which  the  par- 
ties have  contracted  that  the  service  shall  continue  ;  and  I  think 
that  the  relation  of  master  and  servant  subsists,  sufficiently  for  the 
purpose  of  such  action,  during  the  time  for  which  there  is  in  exist- 
ence a  binding  contract  of  hiring  and  service  between  the  parties ; 
and  I  think  that  it  is  a  fanciful  and  technical  and  unjust  distinction 
to  say  that  the  not  having  actually  entered  into  the  service,  or  that 
the  service  not  actually  continuing,  can  make  any  difference.  The 
wrong  and  injury  are  surely  the  same,  whether  the  wrong-doer 
entices  away  the  gardener,  who  has  hired  himself  for  a  year,  the 
night  before  he  is  to  go  to  his  work,  or  after  he  has  planted  the 
first  cabbage  on  the  first  morning  of  his  service  ;  and  I  should  be 
sorry  to  support  a  distinction  so  unjust,  and  so  repugnant  to  com- 
mon sense,  unless  bound  to  do  so  by  some  rule  or  authority  of 


SECT.  IV.  —  CONTRACT    WITH    THIHD    PERSON.  713 

No.  14.  —  Lumley  v.  Gye. 

law  plainly  showing  that  such  distinction  exists.  The  proposition 
of  the  defendant,  that  there  must  be  a  service  actually  subsisting, 
s  iems  to  be  inconsistent  with  the  authorities  that  show  these 
fictions  to  be  maintainable  fur  receiving  or  harbouring  servants 
after  they  have  left  the  actual  service  of  the  master.  In  Blake  v. 
Lanyon,  6  T.  R  'I'll,  it  was  held  by  the  Court  of  King's  Bench, 
in  accordance  with  the  opinion  of  Gawdy,  J.,  in  Adams  v.  Bafeald, 
1  Leon.  240,  and  against  the  opinion  of  the  two  other  Judges  who 
delivered  their  opinions  in  that  case,  that  an  action  will  lie  for 
continuing  to  employ  the  servant  of  another  after  notice,  without 
having  enticed  him  away,  and  although  the  defendant  had  received 
the  servant  innocently.  It  is  there  said  that  "  a  person  who  con- 
tracts with  another  to  do  certain  work  for  him  is  the  servant  of 
that  other  till  the  work  is  finished,  and  no  other  person  can 
employ  such  servant  to  the  prejudice  of  the  first  master ;  the 
very  act  of  giving  him  employment  is  affording  him  the  means  of 
keeping  him  out  of  his  former  service."  This  appears  to  me  to 
show  that  we  are  to  look  to  the  time  during  which  the  contract 
of  service  exists,  and  not  to  the  question  whether  an  actual  service 
subsists  at  the  time.  In  Blake  v.  Lanyon,  supra,  the  party,  so  far 
from  being  in  the  actual  service  of  the  plaintiff,  had  abandoned 
that  service  and  entered  into  the  service  of  the  defendant,  in 
which  he  actually  was  ;  but,  inasmuch  as  there  was  a  binding  con- 
tract of  service  with  the  plaintiffs,  and  the  defendant  kept  the 
party  after  notice,  he  was  held  liable  to  an  action.  Since  this 
decision,  actions  for  wrongfully  hiring  or  harbouring  servants  after 
the  first  actual  service  had  been  put  an  end  to  have  been  frequent. 
See  Pilkington  v.  Scott,  15  M.  &  W.  657  ;  Hartley  v.  Cummings,  5 
Com.  B.  247.  In  Sykes  v.  Dixon,  9  A.  &  E.  693,  where  the  distinc- 
tion as  to  the  actual  service  having  been  put  an  end  to  was  relied 
upon  for  another  purpose,  it  does  not  seem  to  have  occurred  to  the 
bar  or  the  court  that  the  action  would  fail  on  account  of  there 
having  been  no  actual  service  at  the  time  of  the  second  hiring  or 
the  harbouring  ;  but  the  question  as  to  there  being  or  not  being  a 
binding  contract  of  service  in  existence  at  the  time  seems  to  have 
been  regarded  as  the  real  question. 

The  objection  as  to  the  actual  employment  not  having  com- 
menced would  not  apply  in  the  present  case  to  the  third  count, 
which  states  that  Miss  Wagner  had  become  the  artiste  of  the 
plaintiff,  and  that  the  defendant  had  induced  her  to  depart  from 


714  ACTION  (right  of). 


No.  14.  —  Lumley  v.  Gye. 


the  employment.  But  it  was  further  said  that  the  engagement, 
employment,  or  service,  in  the  present  case,  was  not  of  such  a 
nature  as  to  constitute  the  relation  of  master  and  servant,  so  as  to 
warrant  the  application  of  the  usual  rule  of  law  giving  a  remedy 
in  case  of  enticing  away  servants.  The  nature  of  the  injury  and  of 
the  damage  being  the  same,  and  the  supposed  right  of  action  being 
in  strict  analogy  to  the  ordinary  case  of  master  and  servant,  I  see 
no  reason  for  confining  the  case  to  services  or  engagements  under 
contracts  for  services  of  any  particular  description ;  and  I  think 
that  the  remedy,  in  the  absence  of  any  legal  reason  to  the  contrary, 
may  well  apply  to  all  cases  where  there  is  an  unlawful  and  ma- 
licious enticing  away  of  any  person  employed  to  give  his  personal 
labour  or  service  for  a  given  time  under  the  direction  of  a  master 
or  employer  who  is  injured  by  the  wrongful  act,  —  more  especially 
when  the  party  is  bound  to  give  such  personal  services  exclusively 
to  the  master  or  employer;  though  I  by  no  means  say  that  the  ser- 
vice need  be  exclusive.  Two  Nisi  Prius  decisions  were  cited  by  the 
counsel  for  the  defendant  in  support  of  this  part  of  the  argument. 
One  of  these  cases,  Ashley  v.  Harrison,  1  Peake's  N.  P.  C.  194  ;  s.  c. 
1  Esp.  N.  P.  C.  48,  was  an  action  against  the  defendant  for  having 
published  a  libel  against  a  performer,  whereby  she  was  deterred 
from  appearing  on  the  stage :  and  Lord  Kenyon  held  the  action  not 
maintainable.  This  decision  appears,  especially  from  the  report  of 
the  case  in  Espinasse,  to  have  proceeded  on  the  ground  that  the 
damage  was  too  remote  to  be  connected  with  the  defendant's  act. 
This  was  pointed  out  as  the  real  reason  of  the  decision  by  Mr. 
Erskine  in  the  case  of  Tarleton  v.  M^Gawley,  1  Peake's  N.  P.  C. 
207,  tried  at  the  same  sittings  as  Ashley  v.  Harrrison,  1  Peake's  N. 
P.  C.  194 ;  s.  c.  1  Esp.  N.  P.  C.  48.  The  other  case,  Taylor  v.  Neri, 
1  Esp.  N.  P.  C.  386,  was  an  action  for  an  assault  on  a  performer, 
whereby  the  plaintiff  lost  the  benefit  of  his  services ;  and  Lord 
Chief  Justice  Eyre  said  that  he  did  not  think  that  the  court  had 
ever  gone  further  than  the  case  of  a  menial  servant ;  for  that,  if  a 
daughter  had  left  the  service  of  her  father,  no  action  per  quod 
servitium  amisit  would  lie.  He  afterwards  observed  that,  if  such 
action  would  lie,  every  man  whose  servant,  whether  domestic  or 
not,  was  kept  away  a  day  from  his  business  could  maintain  an 
action  ;  and  he  said  that  the  record  stated  that  Breda  was  a  servant 
hired  to  sing,  and  in  his  judgment  he  was  not  a  servant  at  all ;  and 
he  non-suited  the  plaintiff.     Whatever  may  be  the  law  as  to  the 


SECT.  IV. — CONTRACT    WITH    THIRD   PERSON.  715 

No.  14.  —  Lumley  v.  Gye. 

class  of  actions  referred  to,  for  assaulting  or  debauching  daughters 
or  servants  per  quod  servitium  amisit,  and  which  differ  from  actions 
of  the  present  nature  for  the  wrongful  enticing  or  harbouring  with 
notice,  as  pointed  out  by  Lord  Kenyon  in  Fores  v.  Wilson,  1  Peake's 
N.  P.  C.  55,  it  is  clear  from  Blake  v.  Lanyon,  6  T.  R.  221,  and  other 
subsequent  cases  (Sykes  v.  Dixon,  9  A.  &  E.  693  ;  PilJcington  v.  Scott, 
15  M.  &  W.  657;  and  Hartley  v.  Cummings,  5  Com.  15.  247),  that 
the  action  for  maliciously  interfering  with  persons  in  the  employ- 
ment of  another  is  not  confined  to  menial  servants,  as  suggested  in 
Taylor  v.  Neri,  supra.  In  Blake  v.  Lanyon,  supra,  a  journeyman 
who  was  to  work  by  the  piece,  and  who  had  left  his  work  unfin- 
ished, was  held  to  be  a  servant  for  the  purposes  of  such  an  action  ; 
and  I  think  that  it  was  most  properly  laid  down  by  the  court  in 
that  case,  that  a  person  who  contracts  to  do  certain  work  for 
another  is  the  servant  of  that  other  (of  course  with  reference  to 
such  an  action)  until  the  work  be  finished.  It  appears  to  me  that 
Miss  Wagner  had  contracted  to  do  work  for  the  plaintiff  within 
the  meaning  of  this  rule;  and  I  think  that,  where  a  party  has  con- 
tracted to  give  his  personal  services  for  a  certain  time  to  another, 
the  parties  are  in  the  relation  of  employer  and  employed,  or  master 
and  servant,  within  the  meaning  of  this  rule.  And  I  see  no  reason 
for  narrowing  such  a  rule ;  but  I  should  rather,  if  necessary,  apply 
such  a  remedy  to  a  case  "  new  in  its  instance,  but"  "not  new  in  the 
reason  and  principle  of  it,"  per  Holt,  C.  J.,  in  Keeble  v.  HicJceringill, 
11  East,  573,  575  ;  note  (a)  to  Carrington  v.  Taylor,  11  East,  571, 
—  that  is,  to  a  case  where  the  wrong  and  damage  are  strictly  analo- 
gous to  the  wrong  and  damage  in  a  well  recognised  class  of  cases. 
In  deciding  this  case  on  the  narrower  ground,  I  wish  by  no  means 
to  be  considered  as  deciding  that  the  larger  ground  taken  by  Mr. 
Cowling  is  not  tenable,  or  as  saying  that  in  no  case  except  that 
of  master  and  servant  is  an  action  maintainable  for  malicious/// 
inducing  another  to  break  a  contract  to  the  injury  of  the  person 
with  whom  such  contract  has  been  made.  It  does  not  appear  to 
me  to  be  a  sound  answer,  to  say  that  the  act  in  such  cases  is  the 
act  of  the  party  who  breaks  the  contract;  for  that  reason  would 
apply  in  the  acknowledged  case  of  master  and  servant.  '  Nor  is  it  an 
answer,  to  say  that  there  is  a  remedy  against  the  contractor,  and 
that  the  party  relies  on  the  contract;  for,  besides  that  reason  also 
applying  to  the  case  of  master  and  servant,  the  action  on  the  con- 
tract and  the  action  against  the  malicious  wrong-doer  may  be  for  a 


716  ACTION  (eight  of). 


No.  14.  —  Lumley  v.  Gye. 


different  matter;  and  the  damages  occasioned  by  such  malicious 
injury  might  be  calculated  on  a  very  different  principle  from  the 
amount  of  the  debt  which  might  be  the  only  sum  recoverable  on 
the  contract.  Suppose  a  trader,  with  a  malicious  intent  to  ruin  a 
rival  trader,  goes  to  a  banker  or  other  party  who  owes  money  to 
his  rival,  and  begs  him  not  to  pay  the  money  which  he  owes  him, 
and  by  that  means  ruins  or  greatly  prejudices  the  party  :  I  am  by 
no  means  prepared  to  say  that  an  action  could  not  be  maintained, 
and  that  damages,  beyond  the  amount  of  the  debt  if  the  injury 
were  great,  or  much  less  than  such  amount  if  the  injury  were  less 
serious,  might  not  be  recovered.  AY  here  two  or  more  parties  were 
concerned  in  inflicting  such  injury,  an  indictment,  or  a  writ  of  con- 
spiracy at  common  law,  might  perhaps  have  been  maintainable  ; 
and,  where  a  writ  of  conspiracy  would  lie  for  an  injury  inflicted  by 
two,  an  action  on  the  casein  the  nature  of  conspiracy  will  generally 
lie  ;  and  in  such  action  on  the  case  the  plaintiff  is  entitled  to  re- 
cover against  one  defendant  without  proof  of  any  conspiracy,  the 
malicious  injury  and  not  the  conspiracy  being  the  gist  of  the  action. 
See  note  (4)  to  Skinner  v.  Gunton,  1  Wms.  Saund.  _!30.  In  this 
class  of  cases  it  must  be  assumed  that  it  is  the  malicious  act  of  the 
defendant,  and  that  malicious  act  only,  which  causes  the  servant  or 
contractor  not  to  perform  the  work  or  contract  which  he  would 
otherwise  have  done.  The  servant  or  contractor  may  be  utterly 
unable  to  pay  anything  like  the  amount  of  the  damage  sustained 
entirely  from  the  wrongful  act  of  the  defendant ;  and  it  would  seem 
unjust,  and  contrary  to  the  general  principles  of  law,  if  such  wrong- 
doer were  not  responsible  for  the  damage  caused  by  his  wrongful 
and  malicious  act.  Several  of  the  cases  cited  by  Mr.  Cowling  on 
this  part  of  the  case  seem  well  worthy  of  attention. 

Without,  however,  deciding  any  such  more  general  question,  I 
think  that  we  are  justified  in  applying  the  principle  of  the  action 
for  enticing  away  servants  to  a  case  where  the  defendant  maliciously 
procures  a  party,  who  is  under  a  valid  contract  to  give  her  exclu- 
sive personal  services  to  the  plaintiff  for  a  specified  period,  to  refuse 
to  give  such  services  during  the  period  for  which  she  has  so  con- 
tracted, whereby  the  plaintiff  was  injured. 

T  think,  therefore,  that  our  judgment  should  be  for  the  plaintiff. 


SECT.  IV.  —  CONTRACT   WITH    THIRD    PERSON.  717 

No.  15.  —  Bowen  v.  Hall. 


No.  15.  — BOWEN  v.    HALL. 

6  Q.  1).  1).  333  (s.  c.  50  L.  J.  Q.  B.  305). 

Action  as  against  the  defendants  Hall  and  Fletcher  for  wrong- 
fully enticing  away  and  keeping  the  other  defendant  Pearson  from 
the  plaintiff's  employment,  and  for  wrongfully  receiving  and  har- 
bouring him  after  notice  of  his  being  the  servant  of  the  plaintiff, 
and  as  against  the  said  defendant  Pearson  for  unlawfully  and 
against  the  will  of  the  plaintiff  departing  from  the  service  of 
the  plaintiff.  The  facts,  so  far  as  necessary  for  this  report,  are 
these :  — 

The  plaintiff  carried  on  the  business  of  brickmaker,  at  the  Clat- 
tershall  Fire  Brickworks  in  Staffordshire,  and  in  June,  1877,  the 
defendant  Pearson,  who  was  a  bath  and  brickmaker,  entered  into 
a  written  agreement  with  the  plaintiff,  of  which  the  following  is  a 
copy  :  — 

Clattershall  Fire  Brickworks,  Stourbridge, 
June  18th,  1877. 

I,  George  Pearson,  of  Stamber  Hill,  near  Stourbridge,  hereby 
agree  and  undertake,  for  the  consideration  of  the  prices  below 
named,  to  find  all  labour  for  the  whole  manufacture  in  a  workman- 
like manner  of  best  quality  white-glazed  bricks  and  baths  (with 
exception  of  hooping  the  baths  and  preparing  the  clay  mass),  in 
such  quantities  as  you  require  and  when  you  require,  and  deliver 
anywhere  they  may  be  required  on  the  above  premises,  the  said 
quality  and  to   be   quite  equal   to  sample  supplied  and  marked 

,  and  the  said  prices  to  be  subject  to  the  standard  prices  of 

the  trade  for  the  manufacture  of  the  same. 

Prices  of  bricks,  9"  x  4|-"  x  3 " :  — 

Perfect  single  sides,  ends  or  flats,  in  quantities  up  to  10,000  per 
week,  505.  per  1000. 

Perfect  single  sides,  ends  or  flats,  in  quantities  from  10,000  to 
15,000  per  week,  47s.  6d.  per  1000. 

Perfect  single  sides,  ends  or  flats,  in  quantities  from  15,000  and 
upwards  per  week,  45s.  per  1000. 

Perfect  glazed  on  two  surfaces,  20s.  per  1000  extra. 
three       "         30s.     " 

Seconds  of  the  above  from  the  kiln,  25.9.  per  1000. 
Waste         "  "  "        7s.  6d.     " 


'18  ACTION   (RIGHT    OF). 


No.  15.  —  Bowen  v.  Hall. 


Body  and  glaze  for  single  sides,  ends  or  flats,  -\ 

4s.  per  1000.  (i  also  agree 

two  surfaces,  8s.  per  1000.      (      to  find, 
three  surfaces,  1 2s.  per  1000.  ) 
Prices  of  baths  5  ft.  8  ins.  long :  — 
Perfect  baths,  £1  each. 
Second  baths,  10s.  each. 
Waste  baths,  nothing. 

I  also  agree  to  find  body  and  glaze  for  baths  at  2s.  each. 
I  also  agree  to  load  carefully  into  trucks,  when  required,  bricks 
at  Is.  6d.  per  1000.     Baths,  packed,  loaded,  and  fixed  into  trucks  at 
6^.  each  ;  also  to  do  any  day  work  when  required  at  5s.  per  day  of 
nine  hours. 

I  also  agree  not  to  engage  myself  to  any  one  else  for  a  term  of 
five  years. 

Terms  of  Payment. 
Fifty  per  cent,  of  the  cost  of  making  to  be  paid  when  the  goods 
are  in  the  kiln,  and  the  remainder  to  be  paid  when  the  goods  are 
delivered  on  the  bank. 

I,  Edward  Bowen,  do  hereby  agree  to  the  foregoing  conditions, 
also  to  supply  clay  for  the  manufacture  of  the  said  goods  in  a 
proper  state,  also  to  find  all  materials  (with  the  exception  of  body 
and  glaze)  and  tools,  and  not  engage  any  one  else  for  the  same 
work  for  a  term  of  five  years. 

(Signed)     Edward  Bowen. 
George  Pearson. 

The  plaintiff  alleged  that  the  manufacture  of  white-glazed  bricks 
and  baths  according  to  the  said  sample  wras  a  secret  known  to  the 
defendant  Pearson  and  only  a  few  others,  and  that  the  defendant 
Hall,  who  was  a  manufacturer  of  white-glazed  bricks  and  baths  in 
the  neighbourhood  of  the  plaintiff,  did  not  know  of  this  method  of 
manufacture  which  Pearson  used,  and  that  therefore  the  bricks  and 
baths  he  manufactured  were  inferior  to  those  manufactured  by 
Pearson  on  account  of  the  plaintiff.  The  complaint  of  the  plaintiff, 
and  for  which  this  action  was  brought,  was,  that  in  May,  1878,  the 
defendants  Hall  and  Fletcher  (the  latter  being  Hall's  manager) 
wrongfully  induced  Pearson,  contrary  to  his  said  agreement  with 
the  plaintiff,  to  depart  from  the  exclusive  service  of  the  plain- 
tiff, and  to  manufacture  on  account  of  the  defendant  Hall  "lazed 


SECT.  IV.  —  CONTRACT    WITH    THIRD    PERSON.  719 

No.  15.  —  Bowen  v.  Hall. 

bricks  and  baths  such  as  he  had  contracted  to  manufacture  for  the 
plaintiff. 

The  plaintiff  claimed  damages,  not  against  all  the  defendants, 
but  against  only  the  two  defendants  Hall  and  Fletcher.  He  also 
claimed  an  injunction  to  restrain  these  defendants  from  employing 
the  defendant  Pearson  to  do  work  for  them  at  brick-making  or 
glazing,  and  he  claimed  an- injunction  to  restrain  the  defendant 
Pearson  from  engaging  himself  to  the  defendants  Hall  and  Fletcher 
until  the  expiration  of  his  said  contract  of  service  with  the  plaintiff. 
An  interim  injunction  in  the  terms  claimed  was  granted  by  Field, 
J.,  in  September,  1878,  as  against  all  the  defendants. 

The  action  was  tried  before  MANISTY,  J.,  at  the  Staffordshire 
summer  assizes  of  1879,  when  that  learned  Judge  held  that  there 
was  no  evidence  to  enable  the  plaintiff'  to  maintain  his  action 
against  the  defendants  Hall  and  Fletcher,  and  he  therefore  directed 
a  verdict  to  be  entered  for  those  defendants  ;  and  as  regarded  the 
defendant  Pearson,  the  learned  Judge  was  of  opinion  that,  as  that 
defendant  had  not  acted  nor  threatened  to  act  contrary  to  the  in- 
terim injunction,  there  was  nothing  to  justify  making  such  injunc- 
tion perpetual.  The  plaintiff  afterwards  applied  for  and  obtained 
a  rule  nisi  against  all  the  defendants  for  a  new  trial.  The  Queen's 
Bench  Division  made  such  rule  absolute  as  against  the  defendants 
Hall  and  Fletcher,  but  it  discharged  the  rule  as  to  the  defendant 
Pearson.  The  defendants  Hall  and  Fletcher  appealed  to  this  court 
against  the  order  for  a  new  trial,  and  there  was  a  cross  appeal  by 
the  plaintiff  against  the  order  discharging  the  rule  as  to  the  defen- 
dant Pearson. 

Nov.  3,  1880,  Jelf,  Q.  C.  (J.  0.  Griffits,  Q.  C,  with  him),  for  the 
defendants  Hall  and  Fletcher. 

A.  T.  Lawrence,  for  the  defendant  Pearson. 

H.  Matthews,  Q.  C,  and  Anstie,  for  the  plaintiff. 

During  the  argument  the  Court  expressed  themselves  to  be  satis- 
fied that  there  was  evidence  to  go  to  the  jury  as  against  all  the 
defendants.  An  unsuccessful  attempt  was  made  by  counsel  for  the 
defendants  to  distinguish  the  present  case  from  that  of  I/u/mley  v. 
Gye,  2  E.  &  B.  216  ;  22  L.  J.  Q.  B.  463,  on  the  ground  that  there 
was  nothing  in  the  terms  of  the  contract  between  the  plaintiff  and 
Pearson  to  require  the  personal  services  of  the  latter.  On  the  part 
of  the  plaintiff  it  was  contended  that  there  existed  between  Pear- 
son and  the  plaintiff  the  strict  relationship  of  master  and  servant, 


720  ACTION  (right  of). 


No.  15.  —  Bowen  v.  Hall. 


but  that  if  not,  then  the  case  came  within  the  authority  of  Lumley 
v.  Gye,  supra.  It  became  necessary  therefore  to  determine  whether 
the  judgment  of  the  majority  of  the  Judges  who  decided  Lumley  v. 
Gye,  supra,  or  that  of  the  dissenting  Judge  (Coleridge,  J.)  was  to  be 
supported  by  a  Court  of  Appeal.  On  this  point  the  Court  took 
time  to  consider  its  judgment,  and  counsel  in  the  meanwhile  were 
to  be  at  liberty  to  furnish  the  court  with  a  reference  to  any  further 
authority  bearing  on  the  decision  in  that  case.1 

Cur.  adv.  vult. 

Feb.  5.  Brett,  L.  J.  The  Lord  Chancellor  agrees  with  me  in  the 
judgment  [  am  about  to  read,  and  it  is  to  be  taken  therefore  as  the 
judgment  of  the  Lord  Chancellor  as  well  as  of  myself. 

In  this  case,  we  were  of  opinion  at  the  hearing,  that  the  contract 
was  one  for  personal  service,  though  not  one  which  established 
strictly  for  all  purposes  the  relation  of  master  and  servant  between 
the  plaintiff  and  Pearson.  We  were  of  opinion  that  there  was  evi- 
dence to  justify  a  finding  that  Pearson  had  been  induced  by  the 
defendants  to  break  his  contract  of  service,  that  he  had  broken  it, 
and  bad  thereby,  in  fact,  caused  some  injury  to  the  plaintiff.  We 
were  of  opinion  that  the  act  of  the  defendants  was  done  with  know- 
ledge of  the  contract  between  the  plaintiff  and  Pearson,  was  done  in 
order  to  obtain  an  advantage  for  one  of  the  defendants  at  the  ex- 
pense of  the  plaintiff,  was  done  from  a  wrong  motive,  and  would 
therefore  justify  a  finding  that  it  was  done  in  that  sense  maliciously. 
Tli ere  remained  nevertheless  the  question,  Whether  there  was  any 
evidence  to  lie  left  to  the  jury  against  the  defendants  Hall  and 
Fletcher,  it  being  objected  that  Pearson  was  not  a  servant  of  the 
plaintiff1.  The  case  was  accurately  within  the  authority  of  the  case 
of  Lumley  v.  Gye,  supra.  If  that  case  was  rightly  decided,  the  objec- 
tion in  this  case  failed.  The  only  question  then  which  we  took 
time  to  consider  wTas  whether  the  decision  of  the  majority  of  the 
Judges  in  that  case  should  be  supported  in  a  court  of  error.  That 
case  was  so  elaborately  discussed  by  the  learned  Judges  who  took 
part  in  it  that  little  more  can  be  said  about  it,  than  whether,  after 

1  The  following  is  a  list  of  the  author-  780  ;  Burr/ess  v.  Carpenter,  16  Amer.  Rep. 

ities  with  which  the  Court  was  afterwards  643  ;     Bixby  v.  Dunlap,   22    Amer.  Rep. 

furnished,   viz.:    Brans    v.   Walton,    Law  475;    and  note  at  the  end  of  that  case ; 

Rep.    2    C.   P.    615;     Cattle    v.    Stockton  Bryan    v.   Slate,   44    Georgia,   328;    and 

Waterworks  Company,  Law  Rep.  10  Q.  R.  Walter  v.  Cronin,  107  Mass.  555. 
453;    Haskins  v.  Royster,  16  Amer.  Rep. 


SECT.  IV.  —  CONTRACT    WITH    THIRD    PERSON.  721 

No.  15.  —  Bowen  v.  Hall. 

careful  consideration,  one  agrees  rather  with  the  judgments  of  the 
majority,  or  with  the  must  careful,  learned,  and  able  judgment  of 
Mr.  .lustier  Coleridge.  The  decision  of  the  majority  will  be  seen, 
on  a  careful  consideration  of  their  judgments,  to  have  been  founded 
upon  two  chains  of  reasoning.  First,  that  wherever  a  man  does  an 
act  which  in  law  and  in  fact  is  a  wrongful  act,  and  such  an  act  as 
may,  as  a  natural  and  probable  consequence  of  it,  produce  injury  to 
another,  and  which  in  the  particular  case  does  produce  such  an  in- 
jury, an  action  on  the  case  will  lie.  This  is  the  proposition  to  be  de- 
duced from  the  case  of  AsKby  v.  White,  1  Sm.  L.  C.  8th  ed.  p.  264.  If 
these  conditions  are  satisfied,  the  action  does  not  the  less  lie  because 
the  natural  and  probable  consequence  of  the  act  complained  of  is 
an  act  done  by  a  third  person  ;  or  because  such  act  so  done  by  the 
third  person  is  a  breach  of  duty  or  contract  by  him,  or  an  act  illegal 
on  his  part,  or  an  act  otherwise  imposing  an  actionable  liability  on 
him.  It  has  been  said  that  the  law  implies  that  the  act  of  the  third 
party,  being  one  which  he  has  free  will  and  power  to  do  or  not  to 
do,  is  his  own  wilful  act,  and  therefore  is  not  the  natural  or  proba- 
ble result  of  the  defendants'  act.  In  many  cases  that  may  be  so: 
but  if  the  law  is  so  to  imply  in  every  case,  it  will  be  an  implication 
contrary  to  manifest  truth  and  fact.  It  has  been  said  that  if  the 
act  of  the  third  person  is  a  breach  of  duty  or  contract  by  him,  or 
is  an  act  which  it  is  illegal  for  him  to  do,  the  law  will  not  recognise 
that  it  is  a  natural  or  probable  consequence  of  the  defendant's  act. 
Again,  if  that  were  so  held  in  all  cases,  the  law  would  in  some 
refuse  to  recognise  what  is  manifestly  true  in  fact.  If  the  judg- 
ment of  Lord  Ellenborough  in  Vicar  v.  Wilcochs,  8  East,  1  ;  2  Sm. 
L.  C.  8th  ed.  p.  554,  requires  this  doctrine  for  its  support,  it  is,  in 
our  opinion,  wrong. 

We  are  of  opinion  that  the  propositions  deduced  above  from 
AsJiby  v.  White,  1  Sm.  L.  C.  8th  ed.  p.  264,  are  correct.  If  they 
be  applied  to  such  a  case  as  Lumley  v.  Gye,  supra,  the  question  is 
whether  all  the  conditions  are  by  such  a  case  fulfilled.  The  first 
is  that  the  act  of  the  defendants  which  is  complained  of  must  be 
an  act  wrongful  in  law  and  in  fact.  Merely  to  persuade  a  person 
to  break  his  contract,  may  not  be  wrongful  in  law  or  fact,  as  in  the 
second  case  put  by  Coleridge,  J.,  2  E.  &  B.,  at  p.  247.  But  if  the  per- 
suasion be  used  for  the  indirect  purpose  of  injuring  the  plaintiff,  or 
of  benefiting  the  defendant  at  the  expense  of  the  plaintiff,  it  is  a 
malicious  act  which  is  in  law  and  in  fact  a  wrong  act,  and  therefore 
vol.  i.  —  46 


722  ACTION  (right  of). 


No.  15.  —  Bowen  v.  Hall. 


a  wrongful  act,  and  therefore  an  actionable  act  if  injury  ensues 
from  it.  We  think  that  it  cannot  be  doubted  that  a  malicious  act, 
such  as  is  above  described,  is  a  wrongful  act  in  law  and  in  fact. 
The  act  complained  of  in  such  a  case  as  Lumley  v.  Gye,  supra,  and 
which  is  complained  of  in  the  present  case,  is  therefore,  because 
malicious,  wrongful.  That  act  is  a  persuasion  by  the  defendant  of 
a  third  person  to  break  a  contract  existing  between  such  third  per- 
son and  the  plaintiff'.  It  cannot  be  maintained  that  it  is  not  a 
natural  and  probable  consequence  of  that  act  of  persuasion  that 
the  third  person  will  break  his  contract.  It  is  not  only  the  natural 
and  probable  consequence,  but  by  the  terms  of  the  proposition  which 
involves  the  success  of  the  persuasion,  it  is  the  actual  consequence. 
Unless  there  be  some  technical  doctrine  to  oblige  one  to  say  so,  it 
seems  impossible  to  say  correctly,  in  point  of  fact,  that  the  breach 
of  contract  is  too  remote  a  consequence  of  the  act  of  the  defendants. 
The  technical  objections  alluded  to  above  have  been  suggested  as 
the  consequences  of  the  judgment  in  Vicars  v.  Wilcocks,  supra.  But 
that  judgment  when  so  used  or  relied  on  seems  to  us  to  be'  disap- 
proved in  the  opinions  given  in  the  House  of  Lords  in  Lynch  v. 
Knight,  9  H.  L.  C.  577,  and  seems  to  us  when  so  used  to  be  unrea- 
sonable. In  the  case  of  Lumley  v.  Gye,  supra,  and  in  the  present 
case,  the  third  condition  is  fulfilled,  —  namely,  that  the  act  of  the 
defendant  caused  an  injury  to  the  plaintiff,  unless  again  it  can  be  said 
correctly  that  the  injury  is  too  remote  from  the  cause.  But  that 
raises  again  the  same  question  as  has  been  just  dismissed.  It  is 
not  too  remote  if  the  injury  is  the  natural  and  probable  consequence 
of  the  alleged  cause.  That  is  stated  in  all  the  opinions  in  Lynch  v. 
Knight,  supra.  The  injury  is  in  such  a  case,  in  law  as  well  as  in 
fact,  a  natural  and  probable  consequence  of  the  cause,  because  it  is 
in  fact  the  consequence  of  the  cause,  and  there  is  no  technical  rule 
against  the  truth  being  recognised.  It  follows  that  in  Lumley  v. 
Gye,  supra,  and  in  the  present  case  all  the  conditions  necessary  to 
maintain  an  action  on  the  case  are  fulfilled. 

Another  chain  of  reasoning  was  relied  on  by  the  majority  in 
Lumley  v.  Gye,  2  E.  &  B.  216;  22  L.  J.  Q.  B.  463,  and  powerfully 
combated  by  Coleridge,  J.  It  was  said  that  the  contract  in  ques- 
tion was  within  the  principle  of  the  Statute  of  Labourers,  —  that 
is  to  say,  that  the  same  evil  was  produced  by  the  same  means,  and 
that  as  the  statute  made  such  means  when  employed  in  the  case 
of  master  and  servant,  strictly  so  called,  wrongful,  the  common 


SECT.  IV. — CONTRACT    WITH    THIRD    PERSON.  723 

No.  15.  —  Bowen  v.  Hall. 

law  ought  to  treat  similar  means  employed  with  regard  to  parties 
standing  in  a  similar  relation  as  also  wrongful.  If,  in  order  to 
support  Lumley  v.   Gye,  2  E.  &  B.  216;  22  L.  J.  Q.  I).  463,  it  had 

been  necessary  to  adopt  this  proposition,  we  should  have  much 
"doubted,  to  say  the  least.  The  reasoning  of  Coleridge,  J.,  upon 
the  second  head  of  his  judgment  seems  to  us  to  be  as  nearly  as 
possible,  if  not  quite,  conclusive.  But  we  think  it  is  not  necessary 
to  base  the  support  of  the  ease  upon  this  latter  proposition.  We 
think  the  case  is  better  supported  upon  the  first  and  larger  doe- 
trine.  And  we  are  therefore  of  opinion  that  the  judgment  of  the 
'Queen's  Bench  Division  was  correct,  and  that  the  principal  appeal 
must  be  dismissed. 

Lord  Selborne,  L.  C.  I  have  now  to  add  the  conclusion  to 
■which  this  court  has  unanimously  come  with  regard  to  the  cross- 
appeal  by  the  plaintiff  against  the  defendant  Pearson,  who  suc- 
ceeded before  the  Queen's  Bench  Division  in  getting  the  rule  for  a 
new  trial  discharged  or  refused  as  to  himself,  while  it  was  made 
absolute  as  to  the  other  defendants. 

Pearson  was  the  workman,  who,  having  a  special  knowledge  or 
skill  in  the  glazing  of  bricks,  which  gave  a  peculiar  and  excep- 
tional value  to  his  services,  contracted  with  the  plaintiff  to  work 
for  him  exclusively  if  required  so  to  do,  during  a  certain  period  of 
time  (the  plaintiff  being  reciprocally  bound  to  employ  no  other 
person  in  the  same  kind  of  work  during  the  same  period),  and  was 
afterwards  induced  by  the  other  defendants  to  break  that  contract. 
The  relief  asked  against  him  in  the  action  was  injunction.  An 
interim  injunction  was  granted  before  the  trial;  and  the  case  went 
down  for  trial  against  all  the  defendants  at  the  same  time  and 
upon  the  same  issues  of  fact.  The  effect  of  leaving  the  verdict  to 
stand  in  Pearson's  favour  would  be  to  entitle  him  to  judgment  in  the 
action,  which  cannot  be  right  if  his  contract  with  the  plaintiff  was 
broken  in  the  manner  alleged  ;  and  if  upon  the  evidence  given  at  the 
trial  that  question  of  fact  could  properly  be  now  determined  in  Pear- 
son's favour,  it  is  impossible  that  upon  the  same  evidence  it  could 
also  be  right  to  order  a  new  trial  as  against  the  other  defendants. 

We  think,  therefore,  that  the  plaintiff's  appeal  must  be  allowed, 
and  that  there  ought  to  be  a  new  trial  as  to  all  the  defendants. 
But  as,  when  the  proper  time  comes  to  give  final  judgment,  the 
consequences  of  a  verdict  for  the  plaintiff  will  not  necessarily  be 
the  same  as  to  Pearson,  and  as  to  the  other  defendants,  we  think 


724  ACTION   (right  of). 


No.  15.  —  Bowen  v.  Hall. 


that  the  judge  at  the  trial  ought  to  give  such  directions  to  the 
jury  as  will  enable  the  court,  if  the  plaintiff  should  succeed,  to 
dual  with  the  particular  case  of  this  defendant  as  may  be  just. 
For  this  purpose  they  ought  to  be  directed,  in  the  event  of  a 
verdict  for  the  plaintiff,  to  find  specially  the  amount  of  damages 
which  they  think  ought  to  be  awarded  against  Pearson,  first,  in 
the  event  of  the  court  thinking  his  case  a  proper  one  both  for  an 
injunction  and  for  damages  ;  and,  secondly,  in  the  event  of  the 
court  thinking  it  a  proper  case  for  damages  only  and  not  also  for 
an  injunction.  (See  Lord  Cairns'  Act.  21  &  22  Vict.  c.  27  §  2, 
and  the  Judicature  Act,  1873,  36  &  37  Vict.  c.  66,  §  2  sub-§  6  ; 
and  §  76.) 

The  cases  of  Hills  v.  Croll,  2  Phill.  60  ;  1  D.  M.  &  G.  627,  n., 
Dietricliaen  v.  Cabburn,  2  Phill.  52,  and  Lumleij  v.  Wagner,  1  D. 
M.  &  G.  604,  627,  and  the  authorities  in  equity  as  to  covenants 
in  restraint  of  trade  within  certain  limits  of  time  or  place,  may 
possibly  require  to  be  considered,  before  the  case  as  to  Pearson 
(in  the  event  of  a  verdict  being  found  against  him)  is  finally 
disposed  of. 

Lord  Coleridge,  C.  J.  In  this  case,  as  far  as  regards  the  de- 
fendants, Hall  and  Fletcher,  I  am  sorry  to  be  obliged  to  differ  from 
the  Lord  Chancellor  and  from  my  Brother  Brett.  The  facts  are 
undisputed,  and  I  understand  that  all  the  members  of  the  court 
are  agreed  that  the  relation  of  master  and  servant  did  not,  in  the 
strict  sense  of  the  word,  exist  between  the  plaintiff  and  the  work- 
man whom  the  defendants  induced  to  break  his  contract.  That 
being  so,  the  point  is  neatly  raised  whether  the  opinion  of  the 
majority  of  the  Judges  or  the  opinion  of  the  dissentient  Judge  in 
the  case  of  Lumley  v.  Gye,  2  E.  &  B.  216;  22  I,  J.  Q.  B.  463, 
should  prevail  in  a  court  which  is  not  bound  by  the  decision  in 
that  case.  I  am  of  opinion  that  as  we  are  not  bound  by  it  we 
ought  to  overrule  it. 

I  believe  if  it  is  not  admitted,  at  least  it  is  the  fact,  that  Lumlci/ 
v.  Gye,  2  E.  &  B.  216  ;  22  L.  J.  Q.  B.  463,  stands  alone.  Cases 
more  or  less  analogous  to  it  are,  no  doubt,  cited  in  the  judgments 
of  the  Judges  relied  upon  as  authorities  by  the  majority,  but,  in 
my  opinion,  distinguished  successfully  by  the  dissentient  Judge. 
Since  its  decision  I  cannot  find  that  its  authority  has  ever  been 
so  acknowledged  as  to  be  followed  in  any  decided  case  which  has 
found  its  way  into  the  Eeports.     From  its  nature  it  cannot  be  a 


SECT.  IV.  —  CONTRACT    WITH    THIRD    PERSON.  I'll 


No.  15.  - -Eowen  v.  Hall. 


very  common  form  of  action;  and  though  no  doubt  it  is  quite  fair 
to  say  that  this  may  reasonably   account  for  the  bareness  of  the 

Reports,  it  ought  also  in  fairness  to  take  away  any  weight  from 
the  circumstance  that  the  case  of  Lumley  v.  Grye,  supra,  has  stood 
so  many  years  in  the  books  without  being  in  terms  questioned  or 
overruled.  Unfavourable  observations  have  been  made  upon  it; 
and,  at  least  in  some  text-books,  when  it  is  treated  as  an  authority, 
it  is  so  treated  with  the  qualification  of  a  "semble."  Further,  it 
has  certainly  not  had  the  unanimous  assent  of  the  profession. 
The  three  judges  who  decided  it,  and  my  two  colleagues  here,  are 
no  doubt  lawyers  entitled  to  the  highest  respect ;  but  there  have 
been  great  lawyers  who  are  well-known  to  have  thought  that  it 
was  wrongly  decided.  I  may  mention  in  particular  Willes,  J., —  no 
doubt  the  counsel  who  argued  unsuccessfully  in  the  case,  but  one 
of  the  greatest  jurists  of  this  or  any  other  time. 

This  state  of  things,  I  conceive,  leaves  me  free  to  express  here 
what  has  always  been  my  own  opinion,  —  viz.,  that  an  action  does 
not  and  ought  not  to  lie  against  a  third  person  for  maliciously  and 
injuriously  enticing  and  procuring  another  to  break  a  contract,  in 
a  case  where  the  relation  of  master  nnd  servant  in  the  strict  sense 
does  not  exist.  I  do  not  propose  to  state  at  length  my  reasons 
for  this  opinion.  I  could  only  recite  the  cases  and  re-state  the 
arguments  of  Sir  John  Coleridge  in  Lumley  v.  Gye,  supra.  I  agree 
with  my  Brother  Brett  that  the  conflicting  views  are  stated  as 
well  as  they  can  be  stated  by  the  Judges  who  respectively  enter- 
tained them  in  that  case  ;  and  that  there  is  really  no  more  to  be 
said  about  it.  The  question  is  with  which  view  do  you  agree,  and 
I  have  said  I  differ  from  the  majority. 

Only  one  independent  observation  occurs  to  me  to  make.  It  is, 
I  believe,  admitted  that  if  a  man  maliciously  endeavours  to  per- 
suade another  to  break  a  contract,  but  fails  in  his  endeavour,  the 
malicious  motive  is  not  in  itself  a  cause  of  action.  It  is,  I  believe, 
also  admitted,  except  by  Sir  William  Erle,  whom,  I  think,  no  one 
has  ever  followed,  that  if  a  man  endeavours  to  persuade  another 
to  break  his  contract  and  succeeds  in  his  endeavour,  yet  if  he  does 
this  without  what  the  law  calls  "malice,"  the  damage  which 
results,  however  great,  is  not  in  itself  a  cause  of  action,  —  I  mean, 
of  course,  a  cause  of  action  against  him.  But  if  the  damage 
which  is  not  in  itself  actionnble  be  joined  to  a  motive  which  is  not 
in  itself  actionable,  the  two  together  form  a  cause  of  action.     This 


726  ACTION  (right  of). 


No.  15.  —  Bowen  v.  Hall. 


seems  a  strange  conclusion,  but  I  am  reminded  of  the  analogies  of 
libel  and  conspiracy,  in  both  which,  it  is  said,  that  malice  makes, 
that  same  thing  actionable  which  without  it  would  not  be  so.  I 
venture  to  think  that  in  this  there  is  a  fallacy. 

In  the  instance  of  libel  there  is  not  even  an  apparent  parallel, 
except  in  cases  of  prima  facie  privilege.  A  statement  in  itself 
defamatory,  made  deliberately  and  intentionally,  is,  I  apprehend* 
a  ground  of  action,  however  pure  and  even  exalted  may  be  the 
motive  of  him  who  makes  it.  The  case  of  privilege  is  an  exception 
to  the  general  law.  A  statement  that  is  defamatory  and  untrue,- 
and  which  may  do  irreparable  damage,  is  yet  protected  under 
certain  conditions,  on  the  ground  that  it  is  better  for  the  general 
good  that  individuals  should  occasionally  suffer  than  that  freedom 
of  communication  between  persons  in  certain  relations  should  be 
in  any  way  impeded.  But  the  freedom  of  communication  which 
it  is  desirous  to  protect  is  honest  and  kindly  freedom.  It  is  not 
expedient  that  liberty  should  be  made  the  cloak  of  maliciousness, 
and  in  such  a  case  the  general  law  applies.  It  is  not,  I  think,, 
accurate  to  say  that  the  malice  makes  the  statement  actionable. 
Deliberate  and  intentional  defamation  is  always  actionable,  and 
the  law  implies  that  a  man  means  what  he  dues,  save  that  under 
peculiar  and  exceptional  circumstances  the  law  will  not  make  the 
implication  which  it  makes  in  all  others.  So,  too,  in  conspiracy. 
The  gist  of  the  civil  action,  as  of  the  criminal  offence,  is  the  act  of 
conspiracy  by  two  or  more  minds  to  bring  about  certain  ends  by- 
certain  means.  It  is  true  that  each  separate  conspirator  might 
not  in  some  instances  be  actionable  nor  indictable  for  attempting 
to  do,  or  even  for  doing,  with  the  utmost  malice  what  he  becomes 
actionable  or  indictable  for  conspiring  to  do  with  others.  But 
here,  too,  I  conceive  that  from  the  act  of  conspiring  to  bring 
about  the  unlawful  end,  or  to  use  the  unlawful  means,  the  law 
implies  that  malice,  which  is  necessary  in  law  to  ground  the 
action,  or  support  the  indictment.  If,  therefore,  the  suggested 
analogies  be  accurately  looked  at,  I  think,  with  all  deference, 
they  turn  out  to  be  no  analogies  at  all.  I  do  not  know,  except  in 
the^case  of  Lumley  v.  Gyc,  2  E.  &  B.  216;  22  L.  J.  Q.  B.  463, 
that  it  has  ever  been  held  that  the  same  person  for  doing  the  same 
thing  under  the  same  circumstances,  with  the  same  result,  is  ac- 
tionable or  not  actionable  according  to  whether  his  inward  motive 
was  selfish  or  unselfish  for  what  he  did.     1  think  the  inquiries  to 


SECT.  IV.  —  CONTRACT   WITH    THIRD    PERSON.  727 

Nos.  14,  15.  —  Lumley  v.  Gye,  &c.  —  Notes. 

which  this  view  uf  the  law  would  lead  are  dangerous  and  inexpe- 
dient inquiries  for  courts  of  justice  ;  judges  are  not  very  fit  for 
them,  and  juries  are  very  unfit.  I  think,  therefore,  that  Lumley  v. 
Gye,  supra,  should  be  overruled,  and  that  this  action  as  against  the 
defendants  Hall  and  Fletcher  is  not  maintainable.  As  to  the 
other  defendant,  Pearson,  1  agree  with  the  rest  of  the  court. 

Appeal  of  defendants  Hall  and  Fletcher  dismissed; 

cross-appeal  of  plaintiff  as  to  defendant  Pearson 

allowed. 

ENGLISH   NOTES. 

These  decisions  of  the  Queen's  Bench  and  of  the  Court  of  Appeal, 
though  dissented  from, —  the  former  by  the  late  Sir  John  Coleridge, 
and  the  latter  by  Lord  Coleridge, —  have  placed  the  rule  beyond  ques- 
tion by  any  English  Court,  unless  by  the  House  of  Lords. 

The  principle  on  which  the  rule  is  based  may  be  stated  more  gene- 
rally as  follows:  Where  an  injury  to  the  plaintiff  has  been  (pre- 
sumably) foreseen,  and  therefore  intended,  by  the  defendant  as  a  con- 
sequence of  his  act,  the  damage,  which  otherwise  would  have  been  too 
remote,  combines  with  the  malicious  intention,  to  make  a  cause  of 
action.  This  is  the  principle  which  underlies  such  apparently  diverse 
cases  as  Langridge  v.  Levy  (pp.  527,  528,  supra),  and  Lumley  v. 
Gye. 

With  these  may  be  contrasted  the  case  of  Cattle  v.  Stockton  Water 
Works  (1875),  L.  K.,  10  Q.  B.  453;  41  L.  J.  Q.  B.  139,  where  defend- 
ants, by  allowing  water  to  flow  from  a  leakage  in  their  pipes,  had  con- 
verted the  ground  of  the  adjacent  owner  (A.)  into  a  sort  of  quicksand. 
This  state  of  things  was  the  cause  of  serious  loss  to  the  plaintiff,  —  a 
contractor  who  had  agreed  with  A.  to  execute  certain  work  in  making 
a  tunnel  on  his  ground.  It  was  held  that,  as  the  defendants  were 
neither  under  any  duty  towards  the  plaintiff,  nor  had  they  the  intention 
(actual  or  presumable)  to  injure  him,  they  were  not  liable  in  the  action. 
It  is  on  a  somewhat  similar  ground  that  Lumley  v.  Gye  is  distin- 
guished by  Lord  Coleridge  in  his  judgment  in  the  case  of  Mogul  S. 
S.  Co.  v.  McGregor  &  Co.  (1888),  21  Q.  B.  D.  544.  552;  57  L.  J.  Q.  B. 
541,  —  a  judgment  afterwards  affirmed  by  the  Court  of  Appeal  and  by 
the  House  of  Lords  (1889),  23  Q.  B.  D.  598,  and  Appeal  Cases,  18,.)1', 
p.  25  ;  58  L.  J.  Q.  B.  465  ;  61  L.  J.  Q.  B.  295.  In  that  case  an  asso- 
ciated body  of  shipowners,  in  order  to  get  the  whole  of  a  certain  ship- 
ping trade  into  their  own  hands,  offered  exceptional  terms  to  customers 
who  would  deal  only  with  members  of  the  association.  The  plaintiff 
was  a  shipowner  who  was  by  these   means   excluded   from   the   trade. 


728  ACTION  (right  of). 


Nos.  14,  15.  —  Lumley  v.  Gye,  &.c. — Notes. 


It  was  decided  that  the  acts  of  the  defendants,  being  lawful  in  them- 
selves, and  dune  with  the  intention  of  benefit  to  themselves  and  not  of 
injuring  the  plaintiff,  gave  him  no  cause  of  action. 


AMERICAN   NOTES. 

This  action  lies  generally  in  this  country.  Lee  v.  Went,  47  Georgia,  311 ; 
Walker  v.  Cronin,  107  Massachusetts,  555;  Ames  v.  Union  R.  Co.,  117  Massa- 
chusetts, 541 ;  Bixbysr.  Dunlap,  56  New  Hampshire,  150;  22  Am.  Rep.  475  ; 
Noice  v.  Brown,  39  New  Jersey  Law,  569 ;  Haskins  v.  RoysU  r,  70  No.  Carolina, 
001;  16  Am.  Rep.  780;  citingtheprincipalca.se;  Woodward  v.  Washburn,  3 
Denio  (New  York),  3G9  ;  Huff"  v.  Walkins,  15  So.  Carolina,  82;  Plummer  v. 
Webb,  4  Mason  (U.  S.  Circ.  Ct.),  380  ;  Sherwood  v.  Hull,  3  Sumner  (U.  S.  Circ. 
Ct.),  127  ;  Haight  v.  BaiUjeley,  15  Barbour  (New  York  Sup.  Ct.),  499 ;  Daniel  v. 
Swearengen,  6  So.  Carolina,  297  ;  24  Am.  Rep.  471  ;  citing  the  principal  case; 
Caughey  v.  Smith,  47  New  York,  244,  holding  however  that  the  servant  must 
be  in  the  actual  service  at  the  time. 

li  a  man  enters  on  another's  premises  to  entice  away  his  servant,  he  is  a  tres- 
passer. Webber  v.  Burr//,  GG  Michigan,  127;  11  Am.  St.  Rep.  466,  and  ex- 
tended note,  472.  citing  the  principal  case. 

A  labourer  working  a  farm  on  shares  has  been  deemed  not  a  servant  so  as  to 
give  the  master  a  right  of  action  for  enticing  him  away.  Winslow  v.  State 
06  Alabama  (to  appear).  But  the  contrary  is  held  in  Haskins  v.  Royster, 
70  No.  Carolina,  001  ;  10  Am.  Rep.  780;  Hufv.  Walkins,  15  So.  Carolina,  82; 
40  Am.  Rep.  680. 

The  first  principal  case  is  cited  in  Ileyirood  v.  Tillson,  75  Maine,  225;  40 
Am.  Rep.  373.  See  also  20  Am.  Law  Reg.  (X.  S.),  578.  Also  cited  in  hud- 
ley  v.  Brigr/s,  141  Mass.  582  ;  55  Am.  Rep.  494. 

In  Chambers  v.  Baldwin,  91  Kentucky,  121  ;  11  Lawyers'  Rep.  Annotated, 
545  (A.  D.  1891),  it  was  held  that  inducing  one  to  break  his  contract  of  sale 
of  goods  will  not  afford  an  action,  although  done  maliciously  and  for  profit, 
but  without  force  or  fraud.  The  action  was  founded  on  the  principal  cases,  but 
they  were  disapproved  by  the  court,  quoting  and  approving  Cooley  on  Torts, 
197  (agreeing  with  Chief  Justice  Coleridge  in  his  dissent):  "An  action 
cannot  in  general  be  maintained  for  inducing  a  third  person  to  break  his 
contract  with  the  plaintiff;  the  consequence,  after  ail,  being  only  a  broken 
contract,  for  which  the  party  to  the  contract  may  have  his  remedy  by  suing 
upon   it." 

The  same  court,  in  Bourlier  v.  Macauley,  91  Kentucky.  135;  34  Am.  St. 
Rep.  171,  held  the  same  doctrine  in  an  action  of  damages  for  inducing  an 
actor  to  break  his  contract  for  theatrical  service,  citing  and  disapproving 
LumleyY.  Gye,  and  approving  Justice  Coleridge's  dissent  therein. 

In  Rice  v.  Manley,  00  New  York,  82  ;  23  Am.  Rep.  30,  the  doctrine  of  the 
principal  cases  was  laid  down  even  where  the  contract  in  question  was  void 
by  the  statute  of  frauds,  it  appearing  that  it  would  have  been  performed  but 
for  the  interference.  See  Lawson  on  Contracts,  §  115,  citing  the  principal 
cases. 


SECT.  V.  —  CASKS    OF   LOSS    WHERE    NO    RIGHT    OF   ACTION.       729 
No.  16.  —  Chaseniore  v.  Richards.  —  Rule. 


Section  V.  —  Cases  of  Loss  where  there  is  no  Bight  of 
Action.     Damnum  absque  Injuria. 

No.  16.  — CHASEMORE   v.  RICHARDS. 

(h.  l.   1859.) 

RULE. 

Where  a  proprietor  digs  a  well  on  his  own  land  and 
pumps  up  water  to  an  extent  exceeding  what  is  required 
for  his  private  use,  with  the  result  of  absorbing  water 
from  the  substrata  and  diminishing  the  supply  enjoyed 
by  neighbouring  proprietors,  but  without  diverting  water 
already  collected  in  any  definite  channel,  the  loss  suffered 
by  these  proprietors  is  damnum  absque  injuria,  and  affords 
no  ground  of  action  against  the  first  proprietor. 

Chasemore  v.  Richards. 

7  II.  L.  C.  349  (s.  c.  29  L.  J.  Ex,  81). 

Error  on  a  judgment  in  the  Court  of  Exchequer  Chamber.  The 
plaintiff  in  the  action  (who  was  also  the  plaintiff  in  error)  was  a 
mill-owner  near  Croydon  ;  the  defendant  was  the  clerk  of  the  local 
Board  of  Health  of  that  town  and  was  sued  in  that  character. 

The  declaration  stated  that  the  plaintiff  was  possessed  of  an 
ancient  mill,  with  the  appurtenances,  and  was  entitled  to  the  How 
of  a  certain  stream,  called  the  Wandle,  for  the  purpose  of  working, 
using,  and  more  conveniently  enjoying  the  said  mill,  and  that  the 
said  board  wrongfully  abstracted  and  prevented  the  flow  of  and 
diverted  the  water  of  the  said  stream  away  from  the  said  mill,  and 
wrongfully  abstracted  and  prevented  and  intercepted  the  flow  of 
and  diverted  water  which  ought  to  have  flowed  into  the  said 
stream  and  mill,  and  continued  to  abstract,  prevent,  divert,  and 
intercept  the  same  respectively,  by  digging  and  sinking  a  well 
near  to  the  said  stream,  and  taking  the  water  of  such  well. 

The  defendant  pleaded  not  guilty,  by  statute.  The  statute 
stated  in  the  margin  was  11  &  12  Vict,  c.  63,  §  139,  —  a  public 
Act.     Upon  this  plea  issue  was  joined. 


730  ACTION   (right  of). 


No.  16.  —  Chasemore  v.  Richards. 


The  cause  came  on  fur  trial  at  the  Kingston  Assizes  in  March, 
1854,  before  Mr.  Baron  Alderson,  when  a  verdict  was  entered  for 
the  plaintiff,  subject  to  the  award  of  Mr.  Creasy,  with  power  to 
him  to  state  a  special  case  for  the  opinion  of  the  Court.  A  case 
was  stated,  and  the  following  are  the  material  facts  set  forth 
in  it :  — 

"  The  plaintiff  is,  and  at  the  time  of  the  acts  complained  of  was, 
possessed  of  and  was  the  occupier  of  an  ancient  mill  on  the  River 
Wandle,  in  the  county  of  Surrey,  called  Waddon  Mill,  situate 
about  one  mile  from  the  town  of  Croydon,  in  the  said  county. 

"  The  plaintiff  and  the  preceding  possessors  and  occupiers  of  the 
said  mill  had,  for  upwards  of  sixty  years  next  before  the  acts  of 
the  local  board  hereinafter  mentioned,  and  for  upwards  of  sixty 
years  next  before  the  bringing  of  the  action,  used  and  enjoyed  as 
of  right,  and  been  entitled  to  use  and  enjoy,  the  flow  of  the  said 
river  for  the  purpose  of  working  and  using  the  said  mill. 

"  The  River  Wandle  commences,  and  always  has  commenced,  its 
course  near  the  part  of  the  town  of  Croydon  which  is  nearest  to 
the  said  mill,  and  the  said  river  flows  and  always  has  flowed 
thence  to  and  by  the  plaintiff's  mill. 

"  The  River  Wandle  is,  and  always  has  been,  fed  and  supplied 
above  the  plaintiffs  mill  by  (among  other  sources  of  supply)  the 
water  produced  by  the  rainfall  on  a  district  of  many  thousand 
acres  in  extent,  comprising  the  town  of  Croydon  and  its  vicinity. 

"  Large  quantities  of  this  water  sink  into  the  upper  ground  to 
various  depths,  and  then  flow  and  percolate  through  the  strata 
towards  and  to  the  River  Wandle  (if  not  interfered  with),  in  some 
instances  rising  to  the  surface  as  springs,  and  then  flowing  as  little 
surface  streams  into  the  river;  in  other  instances  finding  their 
whole  way  underground  into  the  river.  The  precise  lines  and 
courses  in  which  the  underground  runlets  and  particles  of  water 
so  find  their  way  underground  towards  and  to  the  river  vary  con- 
tinually and  infinitely  with  the  shiftings  and  variations  in  the 
soil  which  occur  from  natural  causes,  but  the  general  flow  of  large 
quantities  of  water  to  the  River  Wandle  is  as  above  described ;  and 
if  they  are  not  interfered  with  or  intercepted,  they  form  consider- 
able sources  of  supply  to  the  river,  as  well  above  as  below  the 
plaintiffs  mill. 

"  It  is  impossible  to  know  beforehand  the  precise  or  complete 
"feet  which   the  sinking  a  new  well  and  pumping  from  it  in  any 


SECT.  V.  —  CASES    OF   LOSS    WHERE    NO    RIGHT   OF   ACTION.       73  L 
No.  16.  —  Chasemore  v.  Richards. 

part  of  the  district  above  described  may  have  upun  springs  or 
streams  in  the  vicinity.  The  effect  may  be  instantly  sensible  and 
considerable,  or  for  a  lung  time  no  sensible  effect  may  appear;  but 
the  natural  effect  of  abstracting  a  large  quantity  of  water  at  any 
spot  of  the  district  above  described  is  to  diminish  the  quantity  at 
every  other  spot  throughout  the  district,  though  the  amount  of 
diminution  at  particular  spots  maybe  infini  tesim  ally  small ;  and 
the  natural  effect  to  be  reasonably  expected  from  sinking  a  new 
well  in  such  a  district,  and  from  continually  or  almost  continually 
pumping  thence  large  quantities  of  water  for  a  long  time,  must  be 
the  sensible  diminution  of  the  water  supply  of  springs  and  streams 
in  the  vicinity. 

"  The  above  description  is  to  be  taken  to  apply  to  the  district  in 
question,  not  merely  at  the  present  time,  but  for  60  years  and 
upwards  next  before  the  works  and  acts  of  the  local  Board  of 
Health  hereinafter  mentioned,  and  for  60  years  and  upwards 
before  the  bringing  of  the  action. 

"  The  local  Board  of  Health  for  the  town  of  Croydon  was  duly 
constituted  under  the  '  Public  Health  Act,'  and  under  the  '  Public 
Health  Supplemental  Act,  1849.' 

"In  the  year  of  our  Lord  1851,  the  said  local  board,  for  the  pur- 
pose of  supplying  the  town  of  Croydon  with  water,  and  for  other 
sanitary  purposes  under  the  said  statutes,  made  and  sank  a  large 
well  to  the  depth  of  74  feet  in  their  own  ground,  in  a  piece  of  land 
of  and  belonging  to  them  in  the  town  of  Croydon,  and  within  the 
district  which  has  been  above  described.  The  distance  of  the  said 
well  from  the  commencement  of  the  River  Wandle  is  about  a  quar- 
ter of  a  mile.  They  also  erected  pumps  and  steam-engines  on  their 
said  ground,  and  began  to  pump  water  from  the  well  into  a  reser- 
voir and  pipes,  for  the  supply  of  the  town  at  the  end  of  the  said 
year,  and,  with  slight  periods  of  intermission,  have  continued  to 
do  so  to  the  present  time. 

"  The  amount  of  water  so  pumped  and  taken  by  them  through  and 
from  the  said  well  during  the  period  of  six  calendar  months  from 
the  16th  of  August,  in  the  year  of  our  Lord  1853,  to  the  16th  day 
of  February  in  the  year  of  our  Lord  1854,  was  between  500,000  and 
600,000  gallons  daily,  Part  of  the  said  quantity  of  water  so  then 
pumped  and  taken  by  them  through  and  from  the  said  well  was  water 
then  flowing  and  finding  its  way  underground  through  the  strata  in 
the  manner  above  described,  towards  the  River  Wandle,  and  which, 


732  ACTION  (right  of). 


No.  16.  —  Chasemore  v.  Richards. 


if  not  intercepted  by  the  operation  of  the  said  well  and  pumping, 
would  have  Howed  and  found  its  way  into  the  Paver  Wandle  above 
the  plaintiffs  mill;  but  which,  by  the  operation  of  the  said  well  and 
pumping,  was  drawn  away  into  the  said  well,  and  thence  pumped 
up  and  taken  by  the  said  local  board.  And  I  find,  as  a  fact,  that  the 
said  local  board  did  during  the  six  months  aforesaid,  by  means  of 
the  said  well  and  pumping,  abstract,  divert,  and  intercept  under- 
ground water,  but  underground  water  only,  that  otherwise  would 
have  Howed  and  found  its  way  into  the  River  Wandle,  and  would 
then  and  there,  as  part  of  the  water  and  stream  of  the  said  river, 
have  flowed  and  found  its  way  to  the  said  mill  of  the  plaintiff,  and 
have  been  applicable  and  serviceable  to  and  for  the  working 
thereof,  and  that  the  same  was  sufficient  in  quantity  to  have  been 
of  sensible  value  in  and  towards  the  winking  of  the  said  mill. 

"And  I  find  that  the  said  local  board  did  not,  during  any  part  of 
the  time  in  cpuestion,  intercept,  divert,  or  abstract,  or  draw  into 
their  well,  any  water  which  had  already  joined  the  said  River 
Wandle  and  become  integral  part  of  the  same,  or  which  had 
already  joined  and  become  integral  part  of  any  surface  stream 
running  into  the  said   river. 

"  I  further  find  that  the  said  local  board,  throughout  all  their 
acts  and  works  hereinbefore  described,  were  actuated  by  no  malice 
against  the  plaintiff  or  any  one  else,  and  that  they  did  not  intend 
in  any  way  to  diminish  the  quantity  of  water  in  the  River  Wandle, 
or  to  injure  any  person  interested  in  the  use  of  the  said  river ;  but 
the  said  board  at  the  time  of  their  said  acts  and  works,  and  through- 
out the  said  period  of  six  months  particularly  in  question  in  this 
cause,  had  reasonable  means  of  knowing  the  probable  and  natural 
effects  of  their  said  acts  and  wrorks. 

"  In  considering  this  case,  the  Court  is  to  have  power  to  draw 
all  inferences  of  fact  which  a  jury  might  draw. 

"  The  question  for  the  opinion  and  judgment  of  the  Court  is 
whether,  under  these  circumstances,  the  said  local  Board  of  Health 
is  legally  liable  in  this  action  to  the  plaintiff  for  the  abstraction 
of  water  as  above  described." 

On  the  14th  May,  1856,  the  Court  of  Exchequer,  acting  upon 
the  authority  of  Broadbent  v.  Ramsbothain,  11  Exch.  602,  and 
without  hearing  any  argument,  gave  judgment  for  the  defendant. 

On  the  12th  May,  1857,  the  Court  of  Exchequer  Chamber 
affirmed  that  judgment,  Mr.  Justice  COLERIDGE  differing  from  the 


SECT.  V.  —  CASKS    OF    LOSS    WIIKKK    NO    UIGHT    OF    ACTION".       733 
No.  16.  —  Chasemore  v.  Richards. 

other  Judges.     2  Hurl.  &  Nor.  16S.     On  this  judgment  error  was 
suggested. 

The  Judges   were  summoned,  and  Mr.  Justice  Wightman,  Mr. 

Justice  Williams,  Mr.  Baron  Martin,  Mr.  Justice  Crompton,  Mr. 
Baron  Bramwell,  and  Mr.  Baron  Watson  attended. 

Mr.  Bovill  and  Mr.  Xeedhain  (Mr.  Raymond  with  them)  for  the 

plaintiff.1 

On  the  facts  found  in  the  special  case,  the  plaintiff  has  a  clear 
right  to  this  water;  the  burden  of  showing  a  justification  for  inter- 
ference with  this  right  rests,  therefore,  on  the  defendant.  The 
ordinary  right  to  water  is  the  same  as  the  right  to  light  and  air, 
Blackstone's  Com.,  Vol.  II.  p.  14  ;  and  any  additional  right  must 
be  established  by  grant  or  prescription.  Here  the  plaintiff's  title 
is  perfect,  both  as  respects  ownership  of  land  and  length  of  enjoy- 
ment. He  is  the  owner  of  the  land  over  which  Hows  an  ancient 
mill-stream,  and  he  has  been  in  possession  of  the  right  to  use  the 
water  of  that  stream  for  above  60  years.  His  enjoyment  of  this 
right  has  been  invaded  by  the  defendant,  who  takes  the  water,  not 
only  from  land  which  he  occupies,  but.from  a  large  extent  around,  and 
entirely  diverts  it,  so  that  the  plaintiff  no  longer  has  the  use  of  it. 
This  is  an  excess  for  which  the  defendant  is  answerable.  Each 
owner  may  have  the  reasonable  use  of  water  coming  to  his  land, 
but  the  use  must  be  confined  within  reasonable  limits.  That  is 
the  law  in  England,  and  it  applies  even  in  the  cases  on  the  subject 
of  irrigable  meadows. 

The  first  case  in  which  a  question  of  this  sort  directly  arose  was 
that  of  Bui  don  v.  Bcnsfcd,  1  Camp.  463,  where  Lord  Ellexborolcii 
held  that  "20  years'  exclusive  enjoyment  of  water  in  any  particular 
manner  affords  a  conclusive  presumption  of  right  in  the  party  so 
enjoying  it ;  "  and  there  the  owner  of  an  adjoining  close  was  held 
liable  for  cutting  a  drain,  whereby  the  supply  of  water  to  a  spring 
on  the  plaintiff's  land  was  diminished.  In  Race  v.  Ward,  4  El. 
&  Bl.  702,  it  was  expressly  decided  that  the  use  of  water  issuing 
from  a  well  was  not  in  the  nature  of  a  profit  a  prendre,  but  was 
an  easement ;  and  in  Mason  v.  Hill,  5  Barn.  &  Ad.  1,  it  was  held 
that  an  action  would  lie  to  recover  damages   for  water  diverted 

1  There  was  some  argument    on    the  but,  as  the  judgment  proceeded  entirely 

words  of  the  145th  section  of  the  Public  on  the  general  law  relating  to  rights  to 

Health  Act  of  1848,  11   &  12  Vict.  c.  63,  water,  that  argument  is  not  reported, 
under   which   the   defendant    had    acted ; 


734  ACTION  (right  of). 


No.  16.  —  Chasemore  v.  Richards. 


from  springs  in  the  plaintiffs  land,  and  collected  in  a  reservoir ;: 
for  the  possessor  of  land  through  which  a  natural  stream  flows 
has  a  right  to  the  advantage  of  the  stream  flowing  in  its  natural 
course,  no  adverse  right  having  been  acquired  by  twenty  years.* 
possession. 

The  law  of  the  United  States  resembles  that  of  England.  Mr. 
Justice  Story  in  Tyler  v.  Wilkinson,  4  Mason's  U.  S.  Rep.  400, 
laid  it  down  that  "  no  proprietor  has  a  right  to  use  the  water,"  — 
that  is,  water  flowing  along  his  own  land,  —  "  to  the  prejudice  of 
another;"  and  in  Mr.  Chancellor  Kent's  Commentaries1  the 
right  to  the  use  of  water  is  treated  as  that  of  every  inferior  pro- 
prietor, but  that  right  is  declared  subject  to  the  restriction  that  it 
must  be  a  reasonable  use.  The  same  principle  of  reasonable  use 
lias  therefore  been  adopted  in  both  nations.  That  doctrine  is,  in 
Embrey  v.  Owen,  6  Exch.  Rep.  353,  declared  to  be  fully  estab- 
lished;  and  it  is  said,  6  Exch.  Rep.  368,  "the  law  as  to  flowing; 
water  is  now  put  on  its  right  footing  by  a  series  of  cases,  beginning; 
with  that  of  Wright  v.  Howard,  1  Si.  &  Stu.  190,  followed  by 
Mason  v.  Hill,  3  Barn.  &  Ad.  304;  5  Barn.  &  Aid.  1,  and  ending 
with  that  of  Wood  v.  Wand,  3  Exch.  Rep.  748,  and  see  Miner 
v.  Gilmour,  12  Moo.  P.  C.  Cas.  131,  and  is  fully  settled  in  the 
American  courts.  Kent's  Commentaries."  There  are  several  other 
passages  in  the  same  judgment,  in  all  of  which  the  right  of  alt 
the  proprietors  of  land  is  restricted  "  to  a  reasonable  enjoyment  of 
this  gift  of  Providence."  The  case  of  Wood  v.  Wand,  there  re- 
ferred to,  is  express  upon  that  point.  All  these  authorities  apply- 
as  much  to  water  flowing  under  ground  as  to  that  which  flows'  on 
the  surface,  and  whose  cause  is  visible  to  all.  And  the  doctrine 
thus  set  forth  comes  from  the  civil  law.  Thus  in  Cujacius,  Tit. 
IV.  Comm.  Praed.  Lib.  VIII.  Digest,  Vol.  VII.  (Ed.  Naples  1758), 
Col.  443,  it  is  said,  "  Aqiue  haustus,  est  jus  praedii  non  personam 
Hoc   vero  ita  procedit,  si  aqua   hauriatur  urnis,  aut  urceis,  aut 

1  Vol.  iii.  lect.  52  pp.  439,  445-544  :  channel  when  it  leaves  his  estate.  "NVith- 
"  A  proprietor  of  lands  lias  no  property  in  out  the  consent  of  the  adjoining  pro- 
file water  itself,  but  a  simple  usufruct  prietors,  he  cannot  divert  or  diminish  the- 
while  it  passes  along.  Aqua  currit  et  quantity  of  water  which  would  otherwise- 
debet  cuirere  ut  currere  solebat  is  the  Ian-  descend  to  the  proprietors  below,  nor 
guage  of  the  law.  Though  he  may  use  throw  the  water  back  on  the  proprietors- 
the  water  while  it  runs  over  his  land,  as  above,  without  a  graut,  or  an  uninter 
an  incident  to  the  laud,  he  cannot  an-  rupted  enjoyment  of  twenty  years,  which 
reasonably  retain  or  give  it  another  direc-  is  evidence  of  it." 
tion,  and  he  must  return  it  to  its  ordinary 


SECT.  V.  —  CASES    OF    LOSS   WHERE    NO    RIGHT   OF   ACTION.       Too 
No.  16.  —  Chasemore  v.  Richards. 

situlis  aquariis,  vel  aliis  vasibus  ad  aquam  hauriendam  accommo- 
datis.  Quid  autem  fiet  si  aqua  hauriatur  machinis  aut  organis  ? 
Machinae  quibus  hauriatur  aqua  liae  sunt,  quae  etiarn  liodie  sunt 
in  usu,  rota  tympanum  cochlea.  Quaestio  ergo  legis  est,  quid  juris 
sit  si  aqua  hauriatur  his  machinis ; "  and  lie  goes  on  to  say,  that 
there  may  be  a  grant  of  an  exclusive  right  to  take  water,  but  he 
imposes  even  a  restriction  on  that.  His  words  are,  Tit.  I.  De 
Servitutibus,  Vol.  VII.,  Col.  399,  "  Nunc  quaero  an  sit  utilis  haec 
cessio.  Si  quis  mini  cesserit  ne  sibi  liceat  in  suo  i'undo  aquam 
quaerere.  Constat  vero  banc  cessionem  valere,  quid  est  inihi 
utilis,  ne  scil.  minuatur  aqua  mei  fundi,  nee  praecedantur  venae 
aquariae  mei  fundi  aut  putei."  It  is  therefore  clear  that  Cujacius 
doubted  whether  such  a  right  could  be  good  even  in  a  grant,  and 
he  only  inclined  to  think  it  might,  if  the  grant  was  for  useful  — 
that  is,  necessary  —  purposes  of  the  grantee.  Here  there  is  neither 
evidence  of  a  grant  nor  that  the  water  taken  is  required  for  the 
use  of  the  defendant.  Even  supposing  that  such  a  grant  could  be 
good,  still  it  must  be  shown  to  exist,  and  here  there  is  no  proof  of 
that  kind. 

The  rule  to  be  deduced  from  these  authorities  seems  to  be  that 
the  owner  or  occupier  of  the  land  has  the  right  to  take  the  water 
flowing  through  it  to  a  reasonable  extent,  and  for  purposes  con- 
nected with  the  land  through  which  it  flows,  but  not  otherwise. 
Here  neither  of  these  conditions  is  fulfilled  by  the  defendant ; 
besides  which  he  claims  to  take  not  only  the  water  which  he  finds 
on  his  own  land,  but  likewise  to  draw  it  from  all  the  land  around 
him,  and  not  for  his  own  use  merely,  but  to  supply  other  people, 
who  have  no  right  to  the  water  at  all.  Such  a  claim  cannot  be 
supported ;  it  is  in  excess  of  all  the  principles  which  have  hitherto 
governed  questions  of  this  sort.  Nor  does  the  purpose  of  the 
defendant  give  him  the  right  he  claims.  If  the  defendant  may 
take  the  water  from  all  the  lands  immediately  .around  his  own 
merely  because  he  is  about  to  employ  it  for  the  benefit  of  the 
town  of  Croydon,  he  may  take  it,  in  like  manner,  and  carry  it  to 
London  for  the  purpose  of  the  metropolis.  The  case  of  Diclcinson 
v.  The  Grand  Junction  Canal  Company,  7  Exch.  Eep.  282,  is  pre- 
cisely in  point  here.  There  the  company  had  power  to  make 
wells,  and  in  1849  formed  a  well,  and  pumped  a  quantity  of  under- 
ground water  which  would  otherwise  have  gone  into  the  river,  and 
would  have  found  its  way  to  the  plaintiffs'  mill,  but  which  was 


73G  ACTION  (right  of). 


No.  16.  —  Chasemore  v.  Richards. 


thus  intercepted ;  and  it  was  held  that  an  action  would  lie  at 
common  law  against  the  company  for  this  abstraction  of  the  water, 
though  it  never  had  formed  part  of  the  river,  whether  the  water 
was  part  of  an  underground  watercourse  or  was  merely  water  which 
had  percolated  through  the  stratum.  In  that  case  it  was  said,  7 
Exch.  lie  p.  300,  that  when  water  was  on  the  surface,  the  right  of 
the  owner  of  the  land  was  undoubted ;  "  and  if  the  course  of  a  sub- 
terranean stream  were  well-known,  as  is  the  case  with  many 
which  sink  underground,  pursue  for  a  short  space  a  subterraneous 
course,  and  then  emerge  again,  it  never  could  be  contended  that 
the  owner  of  the  soil  under  which  the  stream  flowed,  could  not 
maintain  an  action  for  the  diversion  of  it  if  it  took  place  under 
such  circumstances  as  would  have  enabled  him  to  recover  if  the 
stream  had  been  wdiolly  above  ground."  [Lord  Brougham.  Sup- 
pose a  man  sank  an  artesian  well  for  his  use,  and  got  an  ample 
supply  of  water,  he  must  obtain  part  at  least  of  it  from  what 
would  otherwise  find  its  way  into  neighbouring  streams.  Suppose 
it  was  like  the  artesian  well  at  Grenelle,  which  affects  streams 
for  forty  or  fifty  miles  around  ;  would  every  proprietor  and  mill- 
owner  within  such  a  circle  have  a  right  of  action  ?]  It  is  not 
necessary  in  this  case  to  consider  such  speculative  instances ;  here 
the  injury  and  the  cause  of  it  are  undoubted. 

The  case  of  Rawstron  v.  Taylor,  11  Exch.  Rep.  369,  does  not 
impeach  the  doctrine  thus  laid  down.  That  case  decided  that  the 
owner  of  land  has  an  unqualified  right,  as  to  water  coming  on  his 
land  in  no  regular  or  defined  course,  to  drain  it  for  agricultural 
purposes,  and  a  neighbouring  proprietor  cannot  complain  that  he 
is  thereby  deprived  of  such  water  which  would  otherwise  have 
come  to  his  land.  There  the  real  principle  was,  that  each  pro- 
prietor had  the  right  to  deal  in  a  reasonable  manner  with  the 
water  on  his  own  land,  and  that  though  such  reasonable  and 
necessary  use  of  it  might  be  injurious  to  another  proprietor,  it 
gave  no  right  of  action.  The  plaintiff  does  not  contest  that  prin- 
ciple, and  its  application  leaves  Dickinson  v.  The  Grand  Junction 
Company  entirely  unshaken.  Nor  is  it  touched  by  Broadbent  v. 
Bamsbotham,  11  Exch.  Rep.  602;  25  L.  J.  Exch.  115,  which  like- 
wise applies  to  surface  water,  where  it  was  held  that  water  which 
occasionally  flowed  over  the  land  in  no  definite  channel,  though 
when  doing  so  it  benefited  the  plaintiff,  could  not  be  claimed  by 
him  as  something  in  which  he  had  a  fixed  legal  interest.     Yet  it 


SECT.  V.  —  CASES    OF    LOSS   WHERE    NO    IlIGHT    OF    ACTION.       737 
No.  16.  —  Chasemore  v.  Richards. 

was  on  the  authority  of  these  two  rases  that  the  judgment  in  the 
Court  of  Exchequer  in  the  present  case  was  given.  [Lord  Wens- 
LEYDALE.  I  did  not  take  part  in  that  judgment  :  I  had  left  the 
Court  before  it  was  delivered.  1  imagined  there  was  a  definite 
stream  which  fell  into  the  basin,  and  that  an  action  would  lie  for 
interrupting  that  stream.  My  learned  brothers  did  not  think 
there  was  any  stream  ;  we  differed,  not  on  any  point  of  law,  but 
on  a  point  of  fact.]  In  the  report  of  the  case  in  the  "  haw- 
Journal"  there  is  introduced  a  very  important  observation  of  Mr. 
Baron  Parke,  who,  speaking  of  Acton  v.  Blundell,  12' Alee.  &  Wels. 
o'24,  said,  "  This  Court  and,  I  believe,  all  other  courts  disapprove  of 
that  part  of  the  judgment  which  denies  the  natural  right  to  the 
water.  In  Wood  v.  Waud  it  was  held  that  there  was  no  distinc- 
tion with  respect  to  water  running  under  ground.  For  instance, 
there  would  be  no  right  to  divert  the  River  Mole  or  the  stream  at 
Ingleborough  (which  is  subterranean  in  a  known  course  of  a  mile). 
Dickinson  v.  The,  Grand  Junction  Canal  Company  shows  the  right 
to  feeders,  unless  the  owner's  necessities  require  them."  The 
plaintiff  here  contends  for  that  natural  right,  and  admits  that 
where  these  are  necessities  of  use  affecting  a  particular  owner  the 
water  may  be  taken  by  him  for  such  necessary  use;  that  is,  indeed, 
the  reasonable  use  which  all  the  authorities  show  to  be  lawful, 
but  that  will  not  justify  what  has  been  done  here. 

This  brings  the  argument  down  to  the  present  case  itself,  and  it 
is  submitted  that  the  judgment  of  Mr.  Justice  Coleridge  is  right, 
2  Hurl.  &  Nor.  168,  186,  and  the  judgments  of  the  other  Judges  in 
the  Exchequer  Chamber  are  erroneous. 

The  Attorney-General  (Sir  F.  Kelly)  and  Mr.  G.  Miller  for  the 
defendant :  — 

The  substance  of  the  plaintiffs  claim  is,  that  after  a  possession 
of  twenty  years  he  is  absolutely  entitled  to  all  the  water  which 
he  has  been  accustomed  to  use  at  his'  mill,  from  whatever  source 
it  is  derived,  whether  passing  through  known  and  defined  channels 
above  the  surface  of  the  ground,  or  passing  through  unknown  and 
undefined  channels  underground.  But  it  is  not  denied  that  his 
claim  is  subject  to  some  qualification,  and  that  is,  that  every 
owner  of  land  over  or  through  which  the  water  flows  to  the  river 
is  entitled  to  appropriate  to  his  own  use  a  reasonable  quantity  of 
this  water.  Here  arises  the  first  difficulty ;  for  here  begins  the 
conflict  of  rights  of  all  the  owners  whose  lands  are  on  the  same 
vol.  i.— -47 


738  ACTIOX  (right  of). 


No.  16.  —  Chasemore  v.  Richards. 


level.  It  is  admitted  that  each  owner  has  a  right  to  the  reason- 
able use  of  the  water  passing  through  his  ground  ;  he  may  sink  a 
well  to  supply  his  domestic  and  agricultural  wants.  This  well 
produces  no  perceptible  effect  on  the  quantity  of  water  that  used 
to  flow  into  the  stream.  But  a  great  many  other  owners  do  the 
same,  and  a  very  perceptible  effect  is  then  produced.  Is  the  mill- 
owner  then  entitled  to  his  action  ?  And,  if  so,  against  whom  ? 
Against  all  jointly,  or  against  each  ?  And,  if  against  each,  against 
which  of  them,  there  being  no  possible  means  of  telling  which 
amongst  them  has  caused  the  injury?  What  is  the  reasonable 
use  ?  First,  it  is  conceded  that  it  is  the  necessary  use  of  the 
water  for  domestic,  and  then  for  agricultural,  purposes  ;  but  Mr. 
Chancellor  Kent  has  been  cited,  and  lie  superadds  the  use  for 
manufacturing  purposes.1  Is  draining  within  the  meaning  of 
agricultural  purposes  ?  Is  irrigation  ?  If  so,  to  what  extent  ? 
Would  the  making  of  an  ornamental  piece  of  water,  a  lake,  —  as  in 
Blenheim  Park,  for  example,  —  be  a  reasonable  use  of  the  water? 
[Lord  Wensleydale.  The  English  cases  have  not  yet  allowed  of 
the  use  of  water  for  irrigation  ;  the  American  cases  do  allow  it. 
In  Embrey  v.  Owen,  6  Exch.  Rep.  353,  an  action  for  using  the 
water  for  the  purposes  of  irrigation  failed,  because  the  evidence 
showed  that  no  injury  had  really  been  occasioned.]  It  has  been 
admitted  that  any  one  man  may  sink  a  well  on  his  own  land,  for 
his  own  domestic  use ;  but  it  is  said  that  the  well  here  is  sunk, 
not  for  the  use  of  the  defendant,  but  of  a  great  number  of  other 
persons,  and  therefore  that  it  is  in  excess  of  the  defendant's  right. 
But  how  can  that  affect  the  question?  If  there  are  five  hundred 
proprietors,  and  all  of  them  agree  that  instead  of  each  sinking  a 
well  at  great  individual  cost  and  trouble,  they  should  pay  one  of 
their  number  to  supply  them  with  water,  the  result  would  be  pre- 
cisely the  same.  Now,  Blackstone,  who  has  been  already  referred 
to,  expressly  states,  2  Com.  p.  14,  that  the  owner  of  the  land 
where  the  water  passes  has  a  full  right  to  use  it  in  its  passage. 
Again,  a  man  has  a  right  to  cover  his  land  with  warehouses  and 
sheds.  Suppose  he  uses  butts  and  tanks  to  collect  the  rain-water. 
By  so  doing,  he  prevents  it  falling  on  the  ground,  sinking  in  and 

1  Kent's    Com.   vol.   iii.   part    4,    lect.  mankind    to   debar   every  riparian    pro- 

52,   tit.    11,   §     7,   p.    546:    "Streams   of  prietor  from  the  application  of  the  water 

water  are  intended  for  the  use  and  com-  to  domestic,   agricultural,    and    manufac- 

fort  of  man,  and  it  would  be  unreasonable  turing  purposes." 
and   contrary   to  the   universal   sense  of 


SECT.  V.  —  CASKS    OF    LOSS    WHERE    NO    RIGHT    OF    ACTION.       739 
No.  16.  —  Chasemore  v.  Richards. 

percolating'  through  the  earth.  Is  his  doing  that  to  subject  him 
to  an  action,  if  the  neighbouring  stream  is  thereby  affected  '.     Or, 

suppose  what  one  man  does  in  this  way  should  not  affect  the 
stream;  lint  suppose  that  many  others  did  the  same,  and  that  a 
sensible  effect  was  thereby  produced  on  the  stream,  would  an 
action  then  lie,  and,  if  so,  against  whom  ?  In  insisting  on  a  title 
to  the  water  after  more  than  a  twenty  years'  possession,  the  plain- 
tiff is  setting  up  a  prescription  on  his  own  land,  which  he  cannot 
do;  Cooper  v.  Burlier,  3  Taunt.  99.  That  case  was  referred  to  by 
Lord  Chief  Justice  TlNDAL,  in  judgment  in  Acton  v.  Blundell,  VI 
Alee.  &  Wels.  352,  to  show  that  that  which  is  unknown  to  a  man, 
and  therefore  unnoticed  by  him  for  above  twenty  years,  cannot  be 
made  ground  of  prescription  against  him.  The  argument  for  the 
plaintiff  requires  the  House  to  hold  the  reverse,  and  to  say,  that 
though  no  one  knew  of  this  underground  water,  the  exclusive 
benefit  of  which  the  plaintiff  claims,  yet  his  use  of  it,  after  it  had 
found  its  way  into  the  stream  for  above  twenty  years,  is  to  found 
a  prescription  in  his  favour. 

There  are  two  cases  which  bear  directly  on  the  point  now  under 
consideration;  they  are  Acton  v.  Blundell  on  the  one  side,  and 
Dickinson  v.  The  Grand  Junction  Canal  Company  on  the  other. 
llaicstron  v.  Taylor  and  Broadbent  v.  Ramsbotham,  though  impor- 
tant, are  only  of  inferior  importance.  As  to  Dickinson  v.  The 
Grand  Junction  Canal  Company,  it  is  clear  that  the  Judges  in  the 
Exchequer  could  not  have  meant  to  decide  the  question  now  before 
this  House ;  for,  in  that  event,  that  Court  has  now  pronounced 
opposite  decisions  on  the  same  point.  If  that  is  so,  then  the  latter 
must  be  taken  as  overruling  the  former.  The  question  there  really 
depended  on  this  :  Whether  the  company  had  violated  the  local  Act 
of  Parliament,  and  its  own  agreement  made  in  1817,  and  the 
answer  was  in  the  affirmative  ;  but  the  judgment,  7  Exch.  Rep.  301, 
shows  that  the  water  then  spoken  of  was  not  underground  water, 
but  water  which  had  reached  the  surface,  and  was  flowing  in  a 
defined  and  well-known  channel.  Then,  what  is  the  case  of  Acton 
v.  Blundell,  where  the  question  now  before  the  House  really  was 
discussed.  That  case  establishes  the  doctrine  of  the  absolute  right 
of  the  owner  of  land  through  whose  land  water  percolates,  to  use 
that  water.  The  law,  civil  and  English,  with  relation  to  under 
ground  water,  was  there  distinctly  under  discussion;  and  where 
Marcellus  was  there  quoted,  12  Mee.  &  Wels.  335,  for  the  purpose 


740  ACTION  (right  of). 


No.  16.  —  Chasemore  v.  Richards. 


of  showing  that  the  civil  law  did  not  admit  such  a  right,  Mr. 
Justice  Maule  observed,  that  the  true  translation  of  the  obser- 
vation of  that  writer  was,  that  "  If  a  man  dig  a  well  in  his  own 
field,  and  thereby  drains  his  neighbour's,  he  may  do  so,  unless  he 
does  it  maliciously  ; "  and  when  Lord  Chief  Justice  TlNDAL  deliv- 
ered the  judgment  of  the  Court,  12  Mee.  &  Wels.  348,  he  said, 
"The.  question  argued  before  us  has  been  in  substance  this: 
Whether  the  right  to  the  enjoyment  of  an  underground  spring,  or  of 
a  well  supplied  by  such  underground  spring,  is  governed  by  the 
same  rule  of  law  as  that  which  applies  to  and  regulates  a  water- 
course flowing  on  the  surface."  That  is  the  question  now  before 
the  House.  His  Lordship  afterwards  said,  that  if  the  right  to  be 
enjoyed  was  to  be  governed  by.  the  same  law,  then  the  defendants 
could  not  justify  the  making  of  coal-pits;  "but  we  think  there  is 
a  marked  and  substantial  difference  between  the  two  cases,  and 
that  they  are  not  to  be  governed  by  the  same  rule  of  law."  The 
reasons  given  for  the  difference  are  most  strongly  set  forth,  and 
they  depenj:!  on  this :  that  while  as  to  streams  flowing  on  the  sur- 
face, everything  about  them  is  known,  there  is  an  absolute  impossi- 
bility for  any  one  to  know  what  are  the  underground  currents, 
where  they  begin,  what  they  produce,  and  in  what  direction  they 
run,  and  consequently  an  absolute  impossibility  of  knowing  what 
are  the  rights  in  relation  to  them.  The  question  therefore  is  not 
now  brought  for  the  first  time  to  a  court  for  decision ;  it  has 
already  been  fully  considered  and  decided.  That  decision,  pro- 
nounced several  years  ago,  has  never  been  questioned ;  it  is  right  in 
principle,  and  it  fully  justifies  the  all  but  unanimous  judgments  of 
the  Judges  in  this  case. 

Mr.  Bovill  in  reply  :  — 

The  passage  quoted  on  the  other  side  from  Kent's  Commentaries, 
Vol.  iii.  Lect.  52,  pp.  439,  445,  544,  expressly  declares  that  the  use 
of  the  water  for  domestic,  agricultural,  and  manufacturing  purposes 
must  "be  made  under  the  limitations  which  have  been  mentioned." 
Those  limitations  show  that  it  must  be  a  reasonable  use,  and  such 
a  use  as  is  required  for  the  purposes  of  the  owner  of  the  land ;  and 
especially  it  is  not  to  be  used  "  so  as  to  destroy,  or  render  useless, 
or  materially  diminish,  or  affect  the  application  of  the  water  by  the 
proprietors  above  or  below  on  the  stream."  The  civil  law  author- 
ities are  referred  to  in  Acton  v.  Blundell,  and  they  establish  the 
general  proposition  for  which  the  plaintiff  contends. 


SECT.  V.  —  CASES    OF   LOSS   WHERE    NO    RIGHT   OF   ACTION.       741 


No.  16.  --  Chassmore  v.  Richards. 


The  Lord  Chancellor  (Lord  Chelmsford)  proposed  for  the 
opinion  of  the  Judges  the  following  question:  Whether  under 
the  circumstances  stated  in  the  printed  case,  the  Croydon  Local 
Board  of  Health  are  legally  liable  to  the  action  of  the  appellant  for 
the  abstraction  of  the  water  in  the  manner  described  ? 

11th  June.  Mr.  Justice  Wightman  delivered  the  opinion  of  the 
Judges  who  had  been  present  at  the  argument:  — 

My  Lords,  in  this  case  the  Judges  agree  in  opinion.  I  have, 
therefore,  to  deliver  their  unanimous  opinion  to  your  Lordships.  It 
appears  by  the  facts  that  are  found  in  this  case,  that  the  plaintiff 
is  the  occupier  of  an  ancient  mill  on  the  River  Wandle,  and  that 
for  more  than  sixty  years  before  the  present  action  he,  and  all  the 
preceding  occupiers  of  the  mill,  used  and  enjoyed,  as  of  -right,  the 
flow  of  the  river  for  the  purpose  of  working  their  mill.  It  also 
appeal's  that  the  River  Wandle  is,  and  always  has  been,  supplied, 
above  the  plaintiff's  mill,  in  part  by  the  water  produced  by  the 
rainfall  on  a  district  of  many  thousand  acres  in  extent,  comprising 
the  town  of  Croydon  and  its  vicinity.  The  water  of  the  rainfall 
sinks  into  the  ground  to  various  depths,  and  then  flows  and  perco- 
lates through  the  strata  to  the  River  Wandle,  part  rising  to  the 
surface  and  part  finding  its  way  underground  in  courses  which  con- 
tinually vary.  The  defendant  represents  the  members  of  the  Local 
Board  of  Health  of  Croydon,  who  for  the  purpose  of  supplying  the 
town  of  Croydon  with  water,  and  for  other  sanitary  purposes,  sank 
a  well  in  their  own  land  in  the  town  of  Croydon,  and  about  a  quar- 
ter of  a  mile  from  the  River  Wandle,  and  pumped  up  large  quanti- 
ties of  water  from  their  well  for  the  supply  of  the  town  of  Croy- 
don ;  and  by  means  of  the  well  and  the  pumping  the  Local  Board 
of  Health  did  divert,  abstract,  and  intercept  underground  water, 
but  underground  water  only,  that  otherwise  would  have  flowed  and 
found  its  way  into  the  River  Wandle,  and  so  to  the  plaintiff's  mill ; 
and  the  quantity  so  diverted,  abstracted,  and  intercepted,  was  suffi- 
cient to  be  of  sensible  value  towards  the  working  of  the  plaintiffs 
mill.  The  question  is,  whether  the  plaintiff  can  maintain  an  action 
against  the  defendant  for  this  diversion,  abstraction,  and  intercep- 
tion of  the  underground  water. 

The  law  respecting  the  right  to  water  flowing  in  definite,  visible 
channels  may  be  considered  as  pretty  well  settled  by  several  mod- 
ern decisions,  and  is  very  clearly  enunciated  in  the  judgment  of  the 
Court  of  Exchequer  in  the  case  of  Embrey  v.  Our;),  0  Exch.  Rep 


742  ACTION  (right  of). 


No.  16.  —  Chasemore  v.  Richards. 


353.  But  the  law  as  laid  down  in  those  cases  is  inapplicable  to  the 
case  of  subterranean  water  not  flowing  in  any  definite  channel,  nor 
indeed  at  all,  in  the  ordinary  sense,  but  percolating  or  oozing 
through  the  soil,  more  or  less,  according  to  the  quantity  of  rain 
that  may  chance  to  fall.  The  inapplicability  of  the  general  law 
respecting  rights  to  water  to  such  a  case  has  been  recognised  and 
observed  upon  by  many  Judges  whose  opinions  are  of  the  greatest 
weight  and  authority.  In  the  case  of  Rawstron  v.  Taylor.  11  Exch. 
Rep.  382,  Baron  Parke,  in  the  course  of  delivering  judgment,  says, 
"  This  is  the  case  of  common  surface  water  flowing  in  no  definite 
channel,  though  contributing  to  the  supply  of  the  plaintiffs  mill. 
The  waters  having  no  definite  course  and  the  supply  not  being 
constant,  the  plaintiff  is  not  entitled  to  it.  The  right  to  have  a 
stream  running  in  its  natural  direction  does  nut  depend  upon 
a  supposed  grant,  but  is  jure  natural." 

In  delivering  the  judgment  of  the  Court  of  Exchequer  in  the 
subsequent  case  of  Broadbent  v.  Ramsbotham,  11  Exch.  Hep.  602, 
615,  Baron  Aldkksox  observes  that  "all  the  water  falling  from 
heaven,  and  shed  upon  the  surface  of  a  hill,  at  the  foot  of  which  a 
brook  runs,  must  by  force  of  gravity  find  its  way  to  the  bottom,  and 
so  into  the  brook;  but  this  does  not  prevent  the  owner  of  the  land 
on  which  it  falls  from  dealing  with  it  as  he  pleases,  and  appropri- 
ating it.  He  cannot  do  so  if  the  water  has  arrived  at  and  is  flow- 
ing in  some  definite  channel.     There  is  here  no  watercourse  at  all." 

In  the  earlier  case  of  Acton  v.  Blundell,  12  Mee.  &  Wels.  324, 
the  Court  of  Exchequer  were  of  opinion  that  the  owner  of  the  sur- 
face might  apply  subterranean  water  as  he  pleased,  and  that  any 
inconvenience  to  his  neighbour  from  so  doing  was  damnum  absque 
injuria,  and  gave  no  ground  of  action. 

There  is  no  case  or  authority  of  which  I  am  aware  that  can  be 
cited  in  support  of  the  position  contended  for  by  the  plaintiff,  or  in 
which  the  right  to  subterranean  percolating  water  adverse  to  that 
of  the  owner  of  the  soil  came  in  question,  except  the  Nisi  Prius 
case  of  Balston  v.  Bensted,  1  Camp.  463,  and  the  case  of  Dickinson 
v.  The  (Irand  Junction  Canal  Company,  7  Exch.  Rep.  282. 

In  the  first  of  these  cases,  Lord  Ellenborough  is  reported  to  have 
expressed  an  opinion  that  twenty  years'  enjoyment  of  the  nzz  "* 
water  in  any  manner  afforded  an  exclusive  presumption  of  ng>t 
This  opinion  amounted  only  to  the  dictum  of  an  eminent  judge, 
followed  by  no  decision  upon  the  point;  for  the  case  ended  in  the 


SECT.  V.  —  CASES    OF   LOSS   WHERE   NO    RIGHT    OF   ACTION.       743 
No.  16.  —  Chasemore  v.  Richards. 

withdrawal  of  a  juror,  and  is  directly  at  variance  with  the  judg- 
ment of  the  Court  of  Exchequer  in  the  other  case,  upon  which  the 
plaintiff  relies,  of  Dickinson  v.  The  Grand  Junction  Canal  Com- 
pany, in  which  the  Court  declared  "  that  the  right  to  have  a  stream 
running  in  its  natural  course  is  not  by  a  presumed  grant  from  lung- 
acquiescence  on  the  part  of  the  riparian  proprietors  above  and 
below,  but  is  ex  jure  natures,  and  an  incident  of  property  as  much 
as  the  right  to  have  the  soil  itself  in  its  natural  state  unaltered  by 
the  acts  of  a  neighbouring  proprietor,  who  cannot  dig  so  as  to 
deprive  it  of  the  support  of  his  land." 

In  the  case  of  Dickinson  v.  The  Grand  Junction  Canal  Company, 
the  very  question  now  before  your  Lordships'  House  arose,  and  that 
case  is  relied  upon  by  the  plaintiff  as  a  decisive  authority  in  his 
favour.  The  Court  of  Exchequer  was  of  opinion  that  the  company, 
by  digging  a  well  and  pumping  out  the  water,  and  so  intercepting 
and  diverting  underground  and  percolating  water  which  would 
otherwise  have  gone  into  a  stream  which  flowed  to  the  plaintiff's 
mill,  and  was  applied  to  the  working  of  it,  had  become  liable  to  an 
action  for  the  infringement  of  a  right  at  common  law.  In  the  same 
judgment,  however,  the  Court  refers  to  the  case  of  Acton  v.  Blundell, 
7  Exch.  Eep.  300,  apparently  with  approbation,  and  observes,  "  that 
the  existence  and  state  of  underground  water  is  generally  unknown 
before  a  well  is  made ;  and  after  it  is  made  there  is  a  difficulty  in 
knowing  certainly  how  much,  if  any,  of  the  water  of  the  well, 
when  the  ground  was  in  its  natural  state,  belonged  to  the  owner 
in  right  of  his  property  in  the  soil,  and  how  much  belonged  to  his 
neighbour.  These  practical  uncertainties  make  it  very  reasonable 
not  to  apply  the  rules  which  regulate  the  enjoyment  of  streams  and 
waters  above  ground  to  subterranean  waters."  But  the  Court,  with- 
out at  all  adverting  to  this  distinction  which  it  had  adopted,  treated 
the  case  of  underground  percolating  water  as  governed  by  the  same 
rules  as  would  obtain  in  the  case  of  visible  streams  and  water- 
courses above  ground ;  and  no  remark  or  comment  is  made  or  rea- 
son assigned  by  the  Court  for  arriving  at  a  conclusion,  which  not 
only  does  not  seem  warranted  by  the  premises  previously  adopted, 
but  is  in  effect  hardly  consistent  with  them.  The  plaintiff  in  that 
case  was  held  to  have  a  cause  of  action  independently  of  any 
infringement  of  a  right  at  common  law,  by  reason  of  the  breach  of 
an  agreement  between  the  parties  and  of  an  Act  of  Parliament ;  and 
a  decision  upon  the  right  at  common  law  seems  not  to  have   been 


744  ACTION  (right  of). 


No.  16.  —  Chasemore  v.  Richards. 


necessary  for  determining  the  suit  between  the  parties.  These 
considerations  greatly  weaken  the  effect  of  the  case  of  Dickinson  v. 
The  Grand  Junction  Canal  Company  as  an  authority  against  the 
defendant  upon  the  point  now  in  question,  but  it  is  an  authority  in 
his  favour  to  show  that  a  right  to  water  is  not  by  a  presumed  grant 
from  long  acquiescence,  but,  if  it  exists  at  all,  is  jure  naturae,  and 
that  the  rules  of  law  that  regulate  the  rights  of  parties  to  the  use 
of  water  are  hardly,  or  rather  not  at  all,  applicable  to  the  case  of 
waters  percolating  underground. 

In  such  a  case  as  the  present,  is  any  right  derived  from  the  use 
of  the  water  of  the  River  Wandle  for  upwards  of  twenty  years  for 
working  the  plaintiff's  mill  ?  Any  such  right  against  another 
founded  upon  length  of  enjoyment  is  supposed  to  have  originated 
in  some  grant,  which  is  presumed,  from  the  owner  of  what  is  some- 
times called  the  servient  tenement.  But  what  grant  can  be  pre- 
sumed in  the  case  of  percolating  waters,  depending  upon  the 
quantity  of  rain  falling  or  the  natural  moisture  of  the  soil,  and  in 
the  absence  of  any  visible  means  of  knowing  to  what  extent,  if  at 
all,  the  enjoyment  of  the  plaintiff's  mill  would  be  affected  by  any 
water  percolating  in  and  out  of  the  defendant's  or  any  other  land  ? 
The  presumption  of  a  grant  only  arises  where  the  person  against 
whom  it  is  to  be  raised  might  have  prevented  the  exercise  of  the 
subject  of  the  presumed  grant ;  but  how  could  he  prevent  or  stop 
the  percolation  of  water  ?  The  Court  of  Exchequer,  indeed,  in  the 
case  of  Dielinsonx.  The  Grand  Junction  Canal  Company,  expressly 
repudiates  the  notion  that  such  a  right  as  that  in  question  can  be 
founded  on  a  presumed  grant,  but  declares  that  with  respect  to 
running  water  it  is  jure  naturae.  If  so,  a  fortiori,  the.  right,  if  it 
exists  at  all,  in  the  case  of  subterranean  percolating  water,  is  jure 
natural,  and  not  by  presumed  grant;  and  the  circumstance  of  the 
mill  being  ancient  would  in  that  case  make  no  difference. 

The  question  then  is,  whether  the  plaintiff  has  such  a  right  as 
he  claims  jure  natural  to  prevent  the  defendant  sinking  a  well  in 
his  own  ground  at  a  distance  from  the  mill,  and  so  absorbing  the 
water  percolating  in  and  into  his  own  ground  beneath  the  surface, 
if  such  absorption  has  the  effect  of  diminishing  the  quantity  of 
water  which  would  otherwise  find  its  way  into  the  River  Wandle, 
and  by  such  diminution  affects  the  working  of  the  plaintiff's 
mill.  It  is  impossible  to  reconcile  such  a  right  with  the  natural 
and  ordinary  rights  of  landowners,  or  to  fix  any  reasonable  limits 


SECT.  V.  —  CASES   OF   LOSS    WHERE    NO    RIGHT    OF    ACTION.       745 


No.  16.  —  Chasemore  v.  Richards. 


to  the  exercise  of  such  a  right.  Such  a  right  as  thai  contended  for 
Ity  the  plaintiff  would  interfere  with,  if  not  prevent,  the  draining 
of  land  by  the  owner.  Suppose,  as  it  was  put  at  the  bar  in  argu- 
ment, a  man  sank  a  well  upon  his  own  land,  and  the  amount  of 
percolating  water  which  found  its  way  into  it  had  no  sensible  effect 
upon  the  quantity  of  water  in  the  river  which  ran  to  the  plaintiff's 
mill,  no  action  would  be  maintainable;  but  if  many  landowners 
sank  wells  upon  their  own  lands,  and  thereby  absorbed  so  mucli  of 
the  percolating  water,  by  the  united  effect  of  all  the  wells,  as  would 
sensibly  and  injuriously  diminish  the  quantity  of  water  in  the  river, 
though  no  one  well  alone  would  have  that  effect,  could  an  action 
be  maintained  against  any  one  of  them,  and  if  any,  which,  for  it 
is  clear  that  no  action  could  be  maintained  against  them  jointly. 

In  the  course  of  the  argument,  one  of  your  Lordships  (Lord 
Brougham)  adverted  to  the  French  artesian  well  at  the  Abattoir 
de  Grenelle,  which  was  said  to  draw  part  of  its  supplies  from  a 
distance  of  forty  miles,  but  underground,  and,  as  far  as  is  known, 
from  percolating  water.  In  the  present  case  the  water  which  finds 
its  way  into  the  defendant's  well  is  drained  from  and  percolates 
through  an  extensive  district,  but  it  is  impossible  to  say  how  much 
from  any  part.  If  the  rain  which  has  fallen  may  not  be  inter- 
cepted whilst  it  is  merely  percolating  through  the  soil,  no  man 
could  safely  collect  the  rain-water  as  it  fell  into  a  pond ;  nor  would 
he  have  a  right  to  intercept  its  fall  before  it  reached  the  ground,  by 
extensive  roofing,  from  which  it  might  be  conveyed  to  tanks,  to  the 
sensible  diminution  of  water  which  had,  before  the  erection  of  such 
impediments,  reached  the  ground,  and  flowed  to  the  plaintiff's  mill. 
In  the  present  case  the  defendant's  well  is. only  a  quarter  of  a  mile 
from  the  River  Wandle ;  but  the  question  would  have  been  the 
same  if  the  distance  had  been  ten  or  twenty  or  more  miles  distant, 
provided  the  effect  had  been  to  prevent  underground  percolating 
water  from  finding  its  way  into  the  river  and  increasing  its  quan- 
tity, to  the  detriment  of  the  plaintiff's  mill.  Such  a  right  as  that 
claimed  by  the  plaintiff  is  so  indefinite  and  unlimited  that,  unsup- 
ported as  it  is  by  any  weight  of  authority,  we  do  not  think  that  it 
can  be  well  founded,  or  that  the  present  action  is  maintainable; 
.and  we,  therefore,  answer  your  Lordship's  question  in  the  negative. 

Lord  CHELMSFORD.  My  Lords,  the  question  in  this  ease  is, 
whether  the  plaintiff  in  error  is  entitled  to  claim  against  the 
defendant  the  right  to  have  the  benefit  of  the  rain-water  which 


746  ACTION    (RIGHT   OF). 


No.  16.  —  Chasemore  v.  Richards. 


falls  upon  a  district  of  many  thousand  acres  in  extent  and  percolates 
through  the  strata  to  the  River  Wandle,  increasing'  the  supply  of 
water  in  the  river,  and  being  of  sensible  value  in  and  towards  the 
working  of  an  ancient  mill  belonging  to  the  plaintiff.  The  acts  of 
the  defendant,  by  which  this  underground  water  was  interrupted 
and  prevented  from  finding  its  way  into  the  river,  were  done  upon 
his  own  land. 

It  was  conceded  by  the  plaintiff  in  argument,  that  a  landowner 
had  a  limited  and  qualified  right  to  appropriate  water,  the  course 
of  which  is  invisible  and  undefined,  exactly  to  the  same  extent  and 
for  the  same  purposes  as  he  would  be  entitled  to  use  water  flowing 
in  a  defined  and  visible  channel.  This,  it  was  contended,  must  be 
confined  to  a  reasonable  use  of  the  water  for  domestic  and  agricul- 
tural purposes,  and  perhaps  (it  was  said)  according  to  the  opinion 
of  Chancellor  Kent,  for  the  purposes  of  manufacture  also.  It 
must  farther  be  admitted  (and  appeared  to  be  so  in  argument)  that, 
in  addition  to  these  direct  uses  to  which  the  water  may  be  diverted, 
if  in  the  regular  course  of  mining  operations  the  percolation  of 
underground  water  is  arrested  in  its  progress,  and  pi evented  reach- 
ing a  point  where  it  would  have  increased  a  supply  which  had 
previously  been  usefully  employed  by  an  adjoining  landowner,  he 
can  maintain  no  action  for  fhe  loss  of  the  water  thus  cut  off  from 
him.  A  distinction  was  suggested  between  such  a  use  as  the  one 
last  mentioned,  where  the  interception  of  the  water  was  merely 
the  consequence  of  operations  upon  a  party's  own  land,  and  the 
present,  where  the  very  end  and  object  of  the  act  done  was  to 
collect  and  appropriate  the  water.  And  upon  the  state  of  things 
existing  in  this  case  a  farther  distinction  was  insisted  upon  between 
a  party  sinking  a  well  in  his  own  land  for  domestic  or  agricultural 
or  manufacturing  purposes  and  a  public  Board  or  a  Water  Com- 
pany doing  the  same  thing  for  sanitary  purposes,  or  for  supplying 
the  inhabitants  of  the  neighbourhood  with  water. 

Before,  however,  the  plaintiff  can  question  the  act  of  the  defen- 
dant, or  discuss  with  him  the  reasonableness  of  the  claim  to  appro- 
priate this  underground  water  for  these  purposes  (whatever  they 
may  be),  he  must  first  establish  his  own  right  to  have  it  pass  freely 
to  his  mill,  subject  only  to  the  qualified  and  restricted  use  of  it,  to 
which  each  owner  may  be  entitled  through  whose  land  it  may 
make  its  way.  It  seems  to  me  that  both  principle  and  authority 
are  opposed  to  such  a  right. 


SECT.  V.  —CASES    OF   LOSS    WHERE    NO    RIGHT    OF   ACTION.       747 
No.  16.  —  Chasemore  v.  Richards. 

The  law  as  to  water  flowing  in  a  certain  and  definite  channel  has 
been  conclusively  settled  by  a  series  of  decisions,  in  which  the 
whole  subject  has  been  very  fully  and  satisfactorily  considered,  and 
the  relative  rights  and  duties  of  riparian  proprietors  have  been 
carefully  adjusted  and  established.  The  principle  of  these  decisions 
seems  to  me  to  be  applicable  to  all  water  flowing  in  a  certain  and 
defined  course,  whether  in  an  open  visible  stream  or  in  a  known 
subterranean  channel ;  and  I  agree  with  the  observation  of  Lord 
Chief  Baron  Pollock  in  Dickinson  v.  The  Grand  Junction  Canal 
Compa nil,  7  Exch.  Hep.  300,  301,  "that  if  the  course  of  a  subter- 
ranean stream  were  well  known,  as  is  the  case  with  many  which 
sink  underground,  pursue  for  a  short  space  a  subterranean  course, 
and  then  emerge  again,  it  never  could  be  contended  that  the  owner 
of  the  soil  under  which  the  stream  flowed  could  not  maintain  an 
action  for  the  diversion  of  it,  if  it  took  place  under  such  circum- 
stances as  would  have  enabled  him  to  recover  had  the  stream  been 
wholly  above  ground."  But  it  appears  to  me  that  the  principles 
which  apply  to  flowing  water  in  streams  or  rivers,  the  right  to  the 
How  of  which  in  its  natural  state  is  incident  to  the  property 
through  which  it  passes,  are  wholly  inapplicable  to  water  percolating 
through  underground  strata,  which  has  no  certain  course,  no  defined 
limits,  but  which  oozes  through  the  soil  in  every  direction  in  which 
the  rain  penetrates.  There  is  no  difficulty  in  determining  the 
rights  of  the  different  proprietors  to  the  usufruct  of  the  water  in  a 
running  stream.  Whether.it  has  been  increased  by  floods  or  dimin- 
ished by  drouth,  it  flows  on  in  the  same  ascertained  course,  and 
the  use  which  every  owner  may  claim  is  only  of  the  water  which 
has  entered  into  and  become  a  part  of  the  stream.  But  the  right 
to  percolating  underground  water  is  necessarily  of  a"  very  uncertain 
description.  When  does  this  right  commence  ?  Before  or  after 
the  rain  has  found  its  way  to  the  ground  ?  If  the  owner  of  laud 
through  which  the  water  filters  cannot  intercept  it  in  its  progress, 
can  he  prevent  its  descending  to  the  earth  at  all,  by  catching  it  in 
tanks  or  cisterns  ?  And  how  far  will  the  right  to  this  water  supply 
extend  ? 

In  this  case  the  water  which  ultimately  finds  its  way  to  the 
River  Wandle  is  strained  through  the  soil  of  several  thousand 
acres.  Are  the  most  distant  landowners,  as  well  as  the  adjacent 
ones,  to  be  bound,  at  their  peril,  to  take  care  to  use  their  lands  so 
as  not  to  interrupt  the  oozing  of  the  water  through  the  soil  to  a 


748  ACTION   (RIGHT  of). 


No.  16.  ■ —  Chasemore  v.  Richards. 


greater  extent  than  shall  be  necessary  for  their  own  actual  wants  ? 
For,  with  Mr.  Justice  Coleridge,  I  do  not  see  here  "  how  the  igno- 
rance "  which  the  landowner  has  of  the  course  of  the  springs 
below  the  surface,  of  the  changes  they  undergo,  and  of  the  date  of 
their  commencement  "is  material  in  respect  of  a  right  which  dees 
not  grow  out  of  the  assent  or  acquiescence  of  the  landowner,  as 
in  the  case  of  a  servitude,  but  out  of  the  nature  of  the  thing 
itself."     2  Hurl.  &  Nor.  191. 

This  distinction  between  water  flowing  in  a  definite  channel  and 
water,  whether  above  or  underground,  not  flowing  in  a  stream  at  all, 
but  either  draining  off  the  surface  of  the  land,  or  oozing  through 
the  underground  soil  in  varying  quantities  and  in  uncertain  direc- 
tions, depending  upon  the  variations  of  the  atmosphere,  appears  to 
be  well  settled  by  the  cases  cited  in  argument.  In  jRawstron  v. 
Taylor,  11  Exch.  Rep.  369,  382,  it  was  held  that,  in  the  case  of 
common  surface  water  arising  out  of  springy  or  boggy  ground,  and 
flowing  in  no  definite  channel,  the  landowner  was  entitled  to  get 
rid  of  it  in  any  way  he  pleased,  although  it  contributed  to  the 
supply  of  the  plaintiff's  mill.  And  in  Broadbent  v.  Ramsbotham, 
11  Exch.  602,  it  was  decided  that  a  landowner  has  a  right  to 
appropriate  surface  water  which  flows  over  his  land  in  no  definite 
channel,  although  the  water  is  thereby  prevented  from  reaching  a 
brook,  the  stream  of  which  had  for  more  than  fifty  years  worked 
the  plaintiffs  mill.  Baron  Aldersox,  in  delivering  the  judgment 
of  the  Court  in  that  case,  says,  11  Exch.  Eep.  615,  "  No  doubt  all 
the  water  falling  from  heaven  and  shed  upon  the  surface  of  a  hill, 
at  the  foot  of  which  a  brook  runs,  must,  by  the  natural  force  of 
gravity,  find  its  way  to  the  bottom,  and  so  into  the  brook ;  but 
this  does  not  prevent  the  owner  of  the  land  on  which  this  water 
falls  from  dealing  with  it  as  he  may  please,  and  appropriating  it 
He  cannot,  it  is  true,  do  so  if  the  water  has  arrived  at  and  is  flow- 
ing in  some  natural  channel  already  formed.  But  he  has  a  perfect 
right  to  appropriate  it  before  it  arrives  at  such  channel." 

These  cases  apply  to  the  right  to  surface  water  not  flowing  in 
any  defined  natural  watercourse.  But,  of  course,  the  principles 
they  establish  are  equally  if  not  more  strongly  applicable  to  sub- 
terranean water  of  the  same  casual,  undefined,  and  varying  descrip- 
tion. This  appears  clearly  to  have  been  the  opinion  of  Lord  Chief 
Justice  Tindal  and  the  Court  of  Exchequer  Chamber,  in  the  case 
of  Acton  v.  Blundell ;  for,  although  the  Court  abstained  from  inti- 


SECT.  V.  —  CASKS    OF    LOSS    WHERE    NO    RIGHT    OF    A.CTIOX.       749 
No.  16.  -   Chassinore  v.  Richards. 

mating  any  opinion  as  to  what  might  have  been  the  rule  of  law  if 
there  had  been  an  uninterrupted  user  for  twenty  years  of  the  well 
of  the  plaintiff,  which  had  been  laid  dry  by  the  mining  operations 
of  the  defendant,  yet  the  Chief  Justice  having  prefaced  his  judg- 
ment by  stating  that  "  the  question  argued  had  been  in  substance 
this,  whether  the  right  to  the  enjoyment  of  an  underground  spring, 
or  of  a  well  supplied  by  such  underground  spring,  is  governed  by 
the  same  rule  of  law  as  that  which  applies  to  and  regulates  a  water- 
course Mowing  on  the  surface,"  he  concludes  with  these  words, 
12  Mee.  &  Wels.  353:  "We  think  that  the  present  case  is  not  to 
be  governed  by  the  law  which  applies  to  rivers  and  flowing  streams, 
but  that  it  rather  falls  within  that  principle  which  gives  to  the 
owner  of  the  soil  all  that  lies  beneath  his  surface  ;  that  the  land 
immediately  below  is  his  property,  whether  it  is  solid  rock  or 
porous  ground  or  venous  earth,  or  part  soil,  part  water;  that  the 
person  who  owns  the  surface  may  dig  therein,  and  apply  all  that  is 
there  found  to  his  own  purposes  at  his  free  will  and  pleasure  ;  and 
that  if,  in  the  exercise  of  such  right,  he  intercepts  or  drains  off  the 
water  collected  from  the  underground  springs  in  his  neighbour's 
well,  this  inconvenience  to  his  neighbour  falls  within  the  descrip- 
tion of  damnum  absque  injuria,  which  cannot  become  the  ground 
of  an  action." 

The  Court  of  Exchequer,  in  the  present  case,  gave  judgment  for 
the  defendants  without  argument,  on  the  authority  of  the  decision 
in  Broadbent  v.  Ramsbotham.  The  Court  of  Exchequer  Chamber 
affirmed  that  judgment,  there  having  been  only  one  dissentient 
opinion,  which  however,  pronounced  as  it  was  by  a  most  learned 
and  able  Judge  (Mr.  Justice  ColeridCxE),  is  certainly  entitled  to  the 
highest  respect.  The  Judges,  of  whose  assistance  your  Lordships 
have  had  the  advantage,  have  been  unanimous  in  their  agreement 
with  the  judgment  of  the  Court  of  Exchequer  Chamber. 

Against  this  concurrence  of  authority,  what  is  there  to  be 
opposed  in  favour  of  the  plaintiff  but'  the  Nisi  Print  case  of 
Balston  v.  Bcnsted,  1  Camp.  463,  and  the  case  of  Dickinson  v.  The 
Grand  Junction  Canal  Company,  7  Exch.  Rep.  282?  With  respecl 
to  Balston  v.  Benstcd,  it  does  not  appear  that  the  question  of  the 
right  to  water  percolating  through  the  strata,  as  contradistinguished 
from  water  flowing  in  a  visible  stream,  was  ever  presented  to  Lord 
Ellenborough's  mind,  as  it  is  stated  that  the  defence  was  intended 
to  be  set  up,  but  that  he  observed,  early  in   the   trial,  that  there 


750  ACTION  (right  of). 


No.  16.  —  Chasemore  v.  Richards. 


could  be  no  doubt  but  that  twenty  years'  exclusive  enjoyment  of 
water  in  any  particular  manner  affords  a  conclusive  presumption, 
of  right  in  the  party  so  enjoying  it.  Whether  by  the  words  "  in 
any  particular  manner'"'  his  Lordship  meant  to  point  to  the  right 
claimed  in  that  case,  or  intended  to  state  a  proposition  applicable 
to  all  water  of  which  there  had  been  a  twenty  years'  enjoyment, 
from  whatever  source  it  might  be  derived,  it  is  impossible  to  gather 
from  the  report ;  but  the  question  was  never  argued  ;  and  as,  upon 
proof  that  the  decrease  of  the  water  in  the  plaintiffs  bath  had  been 
occasioned  by  the  operations  in  the  defendant's  quarry,  the  case 
was  at  once  referred,  it  can  hardly  be  urged  as  any  authority  at  all 
upon  a  point  of  such  importance,  and  which  requires  so  much  con- 
sideration as  that  which  it  is  supposed  to  have  decided. 

With  respect  to  the  case  of  Dickinson  v.  The  Grand  Junction 
Caned  Comjjany,  upon  which  the  plaintiff  also  relied,  after  the 
observations  made  upon  it  by  Mr.  Justice  CfiESSWELL  in  the 
Exchequer  Chamber,  and  by  Mr.  Justice  WlGHTMAN  in  delivering 
the  opinion  of  the  Judges  to  this  House,  it  is  unnecessary  for  me  to 
say  more  than  that  I  entirely  agree  with  them,  and  think  that  it 
can  hardly  be  regarded  as  a  satisfactory  decision  upon  the  point 
now  under  consideration.  It  appears  to  me  that  reason  and  prin- 
ciple, as  well  as  authority,  are  opposed  to  the  claim  of  the  plain- 
tiff to  maintain  an  action  for  the  interception  of  the  underground 
water  which  would  otherwise  have  ultimately  found  its  way  to 
the  River  Wandle,  and  that,  therefore,  the  judgment  of  the  Court 
of  Exchequer  Chamber  ought  to  be  affirmed. 

Lord  Ckaxworth.  My  Lords,  I  shall  not  trouble  your  Lordships 
by  adding  more  than  a  very  few  words  to  what  has  fallen  from  my 
noble  and  learned  friend,  concurring  as  I  do  entirely  in  the  unani- 
mous opinion  delivered  by  the  learned  Judges  who  assisted  your 
Lordships  at  the  hearing  of  the  argument,  and  in  the  view  taken 
by  my  noble  and  learned  friend. 

The  right  to  running  water  has  always  been  properly  described 
as  a  natural  right,  just  like  the  right  to  the  air  we  breathe  ;  they 
are  the  gifts  of  nature,  and  no  one  has  a  right  to  appropriate  them. 
There  is  no  difficulty  in  enforcing  that  right,  because  running  water 
is  something  visible,  and  no  one  can  interrupt  it  without  knowing 
whether  he  does  or  does  not  do  injury  to  those  who  are  above  or 
below  him.  But  if  the  doctrine  could  be  applied  to  water  merely 
percolating,  as  it  is  said,  through  the  soil,  and  eventually  reaching 


SECT.  V.  —  CASES    OF    LOSS    WHERE    NO    EIGHT    OF    ACTION.       751 
No.  16.  —  Chasemore  v.  Richards. 

some  stream,  it  would  be  always  a  matter  that  would  require  the 
evidence  of  scientific  men,  to  state  whether  or  not  there  had  been 
interruption,  and  whether  or  not  there  had  been  injury.  It  is  a 
process  of  nature  not  apparent,  and  therefore  such  percolating 
water  has  not  received  the  protection  which  water  running  in  a 
natural  channel  on  the  surface  has  always  received.  If  the  argu- 
ment of  the  plaintiff  were  adopted,  the  consequence  would  be  that 
every  well  that  ever  was  sunk  would  have  given  rise,  or  might 
give  rise,  to  an'  action. 

It  is  said  that,  in  this  case,  this  is  not  a  wrell  sunk  by  a  partic- 
ular individual,  for  his  own  purposes,  but  a  great  well  which  has 
been  sunk,  and  by  which  water  is  raised  to  a  very  enormous  extent 
for  supplying  the  whole  town  of  Croydon.  That  argument  does 
not  affect  my  mind  at  all,  because  if  it  be  conceded,  as  I  think  it 
must  be  conceded,  that  each  and  every  one  of  the  individuals  re- 
siding upon  this  area  might  have  sunk  a  well  of  his  own  to  supply 
himself,  it  seems  to  me  to  be  exactly  the  same  thing  whether  the 
water  is  abstracted  by  one  large  well,  which  supplies  the  whole 
community,  or  by  a  thousand  small  wells,  by  which  each  individual 
of  the  community  supplies  himself.  In  truth,  I  should  think  that, 
in  all  probability,  the  loss  of  water  would  be  much  greater  by  each 
individual  sinking  a  well  than  by  one  great  well  being  sunk  for 
the  supply  of  the  whole  community. 

My  Lords,  upon  these  short  grounds,  I  entirely  concur  with  my 
noble  and  learned  friend.  I  think  the  judgment  of  the  Court  of 
Exchequer  Chamber  ought  to  be  affirmed. 

Lord  Wexsleydale.  My  Lords,  this  case  is  of  the  greatest 
importance  and  requires  the  most  full  and  attentive  consideration. 
No  question  that  has  occurred  in  my  time  has  been  so  worthy  of 
the  most  careful  examination ;  and  though  we  have  had  a  very  able 
argument  at  the  Bar  from  the  learned  counsel,  and  we  also  have 
been  favoured  with  the  able  and  unanimous  opinion  of  six  of  the 
Judges,  pronounced  by  Mr.  Justice  WlGHTMAN,  I  must  own,  speak- 
ing for  myself,  I  should  still  desire  farther  discussion,  as  I  have 
felt  very  great  difficulty  in  coining  to  a  conclusion  satisfactory  to 
my  mind :  so  many  difficulties  present  themselves  on  both  sides. 

As,  however,  my  noble  and  learned  friends  who  heard  the  case 
argued  at  the  Bar  have  not  had  the  same  difficulty  in  deciding  that 
I  have,  and  acquiesce  in  the  propriety  of  the  case  being  now  dis- 
posed of,  I  concur,  though  not  without  very  serious  doubts  as  to 
the  propriety  of  the  conclusion  at  which  they  have  arrived. 


752  ACTION  (right  of). 


No.  16.  —  Chasemore  v.  Richards. 


Besides  the  opinion  of  the  learned  Judges,  delivered  by  Mr. 
Justice  WiGHTMAN,  Baron  Bramwell  has  had  the  goodness  to 
communicate  to  nie  one  which  he  wrote,  at  the  time  when  I 
suppose  a  difference  of  opinion  was  expected,  and  I  am  much 
indebted  to  him,  as  the  subject  is  discussed  by  him  with  much 
ability. 

Your  Lordships  have,  for  the  first  time,  to  decide  the  question 
as  to  the  rights  to  underground  water.  There  are  two  conflicting 
authorities, —  the  case  under  appeal,  and  that  of  Dickinson  v.  The 
Grand  Junction  Canal  Company,  7  Exch.  282,  —  and  your  Lordships 
have  to  decide  between  them.  It  is  supposed  in  the  judgment  in 
this  case,  delivered  in  the  Exchequer  Chamber  by  Mr.  Justice 
Cresswell,  that  the  Court  of  Exchequer  had,  in  two  subsequent 
cases  (Raivstron  v.  Taylor,  11  Exch.  369,  and  Broadbent  v.  Rams- 
botham,  11  Exch.  602;  25  L.  J.  Ex.  115),  decided  differently. 
Those  cases  are  said  to  be  inconsistent  with  the  decision  in  Dickin- 
son v.  The  Grand  Junction  Canal  Company,  and  virtually  to  over- 
rule it.  This  is  certainly  a  mistake,  for  having  been  a  party  to 
the  judgments  in  each  of  those  cases,  I  am  sure  I  at  least  had  no 
notion  of  impugning  the  doctrine  which  I  had  joined  in  laying 
down  before,  in  the  case  of  Dickinson  v.  The  Grand  Junction 
Canal  Company,  which  was  not  decided  without  great  considera- 
tion. In  Broadbent  v.  Ramsbotham  it  did  not  appear  that  any 
water  which  percolated  the  strata  would  have  reached  tbe  brook  ; 
and  I  well  recollect  that,  on  the  argument,  I  so  considered,  and 
therefore  that  the  plaintiff  could  not  recover  on  the  ground  on 
which  the  case  of  Dickinson  v.  The  Grand  Junction  Canal  Com- 
pany was  decided.  The  argument  of  Mr.  Cowling  as  reported  in 
the  25  Law  Journal  122  (Exchequer),  which  is  fuller  than  that  in 
the  11  Exchequer,  was  directed  to  this  point.  1  may  add,  that  the 
report  is  more  correct  than  that  in  the  11  Exchequer,  which  attri- 
butes to  me  too  limited  a  view  of  the  decision  in  Dickinson  v.  The 
Grand  Junction  Canal  Company. 

The  subject  of  right  to  streams  of  water  flowing  on  the  surface 
has  been  of  late  years  fully  discussed,  and  by  a  series  of  carefully 
considered  judgments  placed  upon  a  clear  and  satisfactory  footing. 
It  has  been  now  settled  that  the  right  to  the  enjoyment  of  a 
natural  stream  of  water  on  the  surface  ex  jure  natures  belongs 
to  the  proprietor  of  the  adjoining  lands,  as  a  natural  incident  to 
the  right  to  the  soil  itself,  and  that  he  is  entitled  to  the  benefit  of 


SECT.  V.  —  CASKS   OF   LOSS    WHERE    NO    UIGHT   OF   ACTION.       753 
No.  16.  —  Chasemore  v    Richards. 

it,  as  he  is  to  all  the  other  natural  advantages  belonging  to  the 
land  of  which  he  is  the  owner,  lie  has  the  right  to  have  it  come 
to  him  in  its  natural  state,  in  How,  quantity,  and  quality,  and  to  go 
from  him  without  obstruction,  upon  the  same  principle  that  he  is 
entitled  to  the  support  of  his  neighbour's  soil  for  his  own  in  its 
natural  state.  His  right  in  no  way  depends  upon  prescription  or 
the  presumed  grant  of  his  neighbour 

The  elaborate  judgment  of  Lord  Denman  in  the  ease  of  Mason 
v.  Hill,  5  Barn.  &  Ad.  1,  in  1833,  reviewed  most  prior  judgments  and 
authorities  of  importance  up  to  that  date,  and  fully  established 
that  proposition.  But  former  authorities  and  of  a  very  early  date, 
when  carefully  considered,  really  left  no  room  for  doubt  on  this 
subject. 

In  the  case  of  Shury  v.  Pigott,  decided  in  1625,  3  Bulstr.  339, 
Poph.  166,  Palm,  444,  YVhitlock,  Justice,  laid  it  down  that  "a 
watercourse  differs  from  a  way  or  common  ;  that  it  doth  not  begin 
by  prescription  nor  yet  by  assent,  but  the  same  doth  begin  ex  jure 
natures,  having  taken  this  course  naturally,  and  cannot  be  averted," 
and  he  observed  that  the  course  of  a  spring  is  a  natural  course  and 
current,  and  to  stop  this  may  be  a  nuisance  to  the  commonwealth 
and  a  private  wrong.  And  in  Brown  v.  Best,  1  Wils.  174,  Lord 
Chief  Justice  Lee  is  reported  to  have  said  that  a  watercourse  is 
jure  naturae  and  therefore  a  declaration  stating  merely  the  posses- 
sion of  the  place  through  which  the  water  used  to  run  is  good. 
And  Denison,  Justice,  said,  that  in  natural  watercourses  that  was 
the  most  proper  mode  of  declaring. 

This  decision  in  the  case  of  Mason  v.  Hill  has  been  followed  by 
many  others  laying  down  the  same  proposition,  of  which  Wood  v. 
fraud,  3  Ex.ch.  Pep.  748,  was  one.  Mason  v.  Hill  had  been  pre- 
ceded by  the  case  of  Wright  v.  Howard  before  Vice  Chancellor  Sir 
John  Leach,  1  Si  &  Stu  190.  And  it  was  followed  by  Embrey  v. 
Owen,  6  Exch.  353,  and  by  Dickinson  v.  The  Grand  Junction 
Canal  Company. 

This  position  is  also  established  in  the  American  courts  {Tyler 
v.  Wilkinson,  4  Mason  U.  S.  Rep.  400)  and  sanctioned  by  the  best 
writers  of  the  highest  authority  (Kent's  Commentaries,  Vol.  III.  Lect. 
52,  p.  439-455).  And  it  is  laid  down  as  the  first  proposition  in  the 
very  able  treatise  on  Watercourses  by  Mr.  Angel,  an  American 
authority  (pp.  1,  21,  22).  And  it  has  been  held  in  America  that 
the  law  implied  damage  from  the  violation  of  the  right  (vide  Angel 
vox,    r.  —  48 


754  ACTION    (RIGHT    OF). 


No.  16.  —  Chasemore  v.  Richards. 


on  Water,  p.  98 ;  Pastorius  v.  Fisher,  1  Rawle,  Pennsylvania  Eep. 
27),  —  a  matter  which  has  been  sometimes  doubted,  though  probably 
without  sufficient  reason. 

We  may  consider,  therefore,  that  this  proposition  is  indisputable, 
that  the  right  of  the  proprietor  to  the  enjoyment  of  a  watercourse 
on  the  surface  is  a  natural  right,  and  not  acquired  by  occupation  of 
the  stream  itself,  or  presumed  grant.  And  the  expressions  used 
by  Mr.  Justice  Bayley  in  Williams  v.  Morland,2  Barn.  &  Ores. 
910,  and  by  Lord  Chief  Justice  Tindal,  in  Liggins  v.  Inge,  7  Bing. 
682,  that  water  flowing  in  a  stream  is  -publiei  juris,  and  the 
property  of  the  first  occupier,  are  founded  on  a  mistake  between 
the  property  in  the  water  itself  and  the  right  to  have  its  con- 
tinual  flow. 

The  observations,  also,  of  Lord  Chief  Justice  Tindal  in  the  case 
of  Acton  v.  Blundell,  12  Mee.  &  Wels.  324,  and  of  Mr.  Justice 
MAULE  in  Smith,  v.  Kennel:,  7  Com  Ben.  515,  as  to  the  oiigin  of 
the  right  to  the  continual  flow  of  a  superficial  stream  being  the 
presumed  acquiescence  of  the  proprietors  above  and  below,  and 
which  is  the  foundation  of  the  distinction  made  by  the  Lord  Chief 
Justice  between  those  streams  and  subterranean  watercourses,  can- 
not be  supported. 

Now,  the  right  to  a  natural  stream  flowing  in  a  definite  channel 
is  not  confined  to  streams  on  the  surface  ;  but  the  right  to  an  under- 
ground stream  flowing  in  a  known  and  definite  channel  is  equally  a 
right  ex  naturd,  and  an  incident  to  the  land  itself,  as  a  beneficial 
adjunct  to  it,  as  was  determined  in  the  case  of  Wood  v.  Waud. 

If  the  River  Wandle,  in  this  case,  had  been  supplied  by  natural 
streams  flowing  into  the  river  above  ground,  or  in  known  definite 
channels  below  ground,  the  cutting  off  those  streams  to  which  the 
person  entitled  to  the  use  of  the  river  was  entitled  ei  naturd  as 
feeders  of  the  river,  would  be  an  injury  to  him,  and  give  a  right  of 
action  And  if  this  be  true  with  regard  to  underground  streams 
finding  their  way  into  the  river,  then  comes  the  difficulty  how  to 
distinguish  a  smaller  rivulet  and  the  drops  of  water  which  flow 
and  percolate  into  and  supply  the  river.  They  are  all  equally 
the  gifts  of  nature  for  the  benefit  of  the  proprietors  of  the  soil 
through  and  into  which  they  flow.  They  are  all  flowing  water, 
the  property  in  which  is  not  vested  in  the  owner  of  the  soil,  any 
more  than  the  property  in  the  water  of  a  river  which  flows  through 
it  on  the  surface. 


SECT.  V.  —  CASES    OF    LOSS    VVHEUK    NO    lilGHT    OF    ACTION.        f55 
No.  16.  —  Chasemore  v.  Richards. 

In  Acton  v.  Blundell  it  is  said  by  Lord  Chief  Justice  TlNDAL, 
that  the  case  "  rather  falls  within  that  principle  which  gives  to  the 
owner  of  the  soil  all  that  lies  beneath  his  surface;  that  the  land 
immediately  below  is  his  property,  whether  it  be  solid  rock  or 
porous  ground  or  venous  earth,  or  part  soil,  part  water:  that  the 
person  who  owns  the  surface  may  dig  therein,  and  apply  all  that  lie 
finds  to  his  own  purposes,  at  his  free  will  and  pleasure."  If  this 
applies  to  water  underground  in  a  natural  course  of  transit  (and 
it  must  do  so  to  be  applicable  at  all),  and  not  to  mere  stagnant 
water,  I  agree  with  Mr.  Justice  Coleridge  in  his  remarks,  that 
Hie  reason  why  it  is,  as  such,  more  the  subject  of  property  than 
the  water  Mowing  above  ground  is  not  explained,  2  Hur.  &  Nor. 
192.  Surely,  the  use  of  the  flowing  water  in  each  case,  and  not  the 
property  in  it,  belongs  to  the  proprietor  of  the  surface.    - 

As  to  that  part  of  Mr.  Justice  Coleridge's  opinion  in  which  he 
relies  on  the  possession  of  the  mill  for  thirty  or  sixty  years  (2 
•Hur.  &  Nor.  191,  193),  I  think  he  is  wrong.  I  do  not  think  that 
the  principle  on  which  prescription  rests  can  be  applied ;  it  has  not 
been  with  the  permission  of  the  proprietor  of  the  land  that  the 
istreams  have  flowed  into  the  river  for  twenty  years  or  upwards  : 
"  qui  non  prohibet  quod  prohibere  potest,  assentire  videtur."  But 
how  here  could  he  prevent  it  ?  He  could  not  bring  an  action 
against  the  adjoining  proprietor ;  he  could  not  be  bound  to  dig  a 
•deep  trench  in  his  own  land  to  cut  off  the  supplies  of  water,  in 
order  to  indicate  his  dissent.  It  is  going  very  far  to  say  that  a 
anan  must  be  at  the  expense  of  putting  up  a  screen  to  window 
light  to  prevent  a  title  being  gained  by  twenty  years'  enjoyment 
of  light  passing  through  a  window.  But  this  case  would  go  very 
far  beyond  that.  I  think  that  the  enjoyment  of  the  right  to  these 
natural  streams  cannot  be  supported  by  any  length  of  user  if  it 
does  not  belong  of  natural  right  to  the  plaintiff.  For  the  same 
reason,  I  dispute  the  correctness  of  Lord  Ellensborough's  opinion 
in  the  case  of  the  spring  in  Balston  v.  Bensted,  1  Camp.  463, 
where  there  had  been  twenty  years'  enjoyment  of  it  in  a  particular 
mode..  The  true  foundation  of  the  right  is,  that  it  is  incident  to 
the  land  ex  jure  natural. 

What,  then,  is  the  distinction  between  superficial  streams 
and  subterranean  water  ?  With  respect  to  underground  water 
percolating  the  strata,  two  considerations  arise,  which  make  a 
material   difference    between    them    and    the    right   to    superficial 


756  ACTION  (right  of). 


No.  16.  —  Chasemore  v.  Richards. 


streams.  In  the  first  place,  these  subterraneous  waters  cannot  be 
actually  enjoyed  (and  all  things  are  given  to  be  enjoyed)  without 
artificial  means.  The  water  must  be  reduced  into  possession  before 
it  can  be  used,  and  some  mode  of  reducing  into  possession  must 
be  permitted  by  law.  If  there  be  no  such  right,  underground 
water  is  comparatively  useless.  A  man  may  therefore  dig  for  his 
own  supply,  or  make  a  well  for  his  own  use  and  that  of  his  family, 
and,  in  so  doing,  he  may  deprive  his  neighbour's  land  of  moisture, 
and  even  tap  a  copious  spring,  and  prevent  it  from  flowing  to  his 
neighbour's  close.  It  can  rarely  happen  that  in  excavating,  in 
order  to  obtain  the  use  of  the  water,  some  injury  will  not  be  caused 
to  the  subterraneous  supplies  of  a  neighbour,  especially  as  the  pre- 
cise course  and  direction  of  such  water  can  seldom  be  known 
accurately  beforehand. 

In  the  second  place,  as  the  great  interests  of  society  require  that 
the  cultivation  of  every  man's  land  should  be  encouraged,  and  its 
natural  advantages  made  fully  available,  the  owner  must  be  per- 
mitted to  dig  in  his  own  soil,  and,  in  so  doing  he  can  very  rarely 
avoid  interfering  with  the  subterraneous  water  flowing  or  percolat- 
ing in  his  neighbour's  land. 

In  the  civil  law  are  to  be  found  many  instances  in  which  it  is 
allowed  to  cut  off  subterraneous  supplies,  if  it  is  clone  in  the  culti- 
vation of  the  soil.  In  the  Digest,  Bk.  39  Tit.  3  Art,  1.  §  III.  in 
Pothier's  edit.,  Vol.  III.  p.  578,  it  is  said,  "  Denique  Marcellus  scribit ; 
cum  eo  qui  in  suo  fodiens  vicini  fontem  avertit,  nihil  posse  agi ; 
nee  de  dolo.  Et  sane  actionem  non  debet  habere  ;  si  non  animo 
vicino  nocendi,  sed  suurn  agrum  meliorem  faciendi  id  fecit."  And 
a  very  extensive  sense  is  given  to  these  words,  authorising  the 
improvement  of  the  proprietor's  own  land,  in  the  civil  law.  In 
the  same  book  of  the  Digest,  Bk.  39  Tit.  3  Art,  1.  §  IX.,  "De 
aqua  et  aqu;e  pluvise  areendne,"  it  is  said  that  the  making  a  work 
"  agri  colendi  causa  et  frugurn  querendarum  causa,"  and  thereby 
altering  the  course  of  the  "aqua?  pluvi.e,"  is  not  actionable.  The 
term  "Fruges"  is  said  to  be  the  same  as  "rent,"  —  "  Frugem,  pro 
reditu  appellari,  non  solum  quod  frumentis  aut  legumfnibus  ;  verum 
et  quod  ex  vino,  sylvis,  —  caeduis,  cretifodinis,  lapidicinis,  capitur." 
It  would  seem,  therefore,  that  if  the  sources  of  a  fountain  or  spring 
in  an  adjoining  piece  of  land  were  cut  off  by  excavating  in  order 
to  get   the   minerals   in  any  place,  it  would  be   deemed  by  the 


SECT.  V.  —  CASES    OF   LOSS    WHERE    NO    RIGHT    OF    ACTION.       757 
No.  16.  —  Chasemore  v.  Richards. 

Roman   law  to   fail    within  the  principle  of  the   improvement  of 

the  land,  ami  not  be  actionable. 

The  case  of  Acton  v.  Blundell  would  be  rightly  decided  upon 
this  ground,  because  the  injury  to  the  plaintiff's  well  was  caused 
by  the  lawful  exercise  of  the  defendant's  right  to  get  the  minerals 

in  his  land;  and  unless  he  had  that  right,  the  public  would  have 
lost  the  benefit  of  a  valuable  gift  of  Providence. 

We  come,  then,  to  the  conclusion  that  every  man  has  a  right  to 
the  natural  advantages  of  his  soil, — -the  plaintiff  to  the  benefit  of 
the  flow  of  water  in  the  river  and  its  natural  supplies,  the  defen- 
dant to  the  enjoyment  of  his  land,  and  to  the  underground  waters 
on  it;  and  he  may,  in  order  to  obtain  that  water,  sink  a  well.  But 
according  to  the  rule  of  reason  and  law,  "  sic  utere  tuo  ut  alienum 
nun  lsedas,"  it  seems  right  to  hold  that  he  ought  to  exercise  his 
right  in  a  reasonable  manner,  with  as  little  injury  to  his  neigh- 
bour's rights  as  may  be.  The  civil  law  deems  an  act,  otherwise 
lawful  in  itself,  illegal  if  done  with  a  malicious  intent  of  injuring 
a  neighbour,  animo  vicino  rwcendi.  The  same  principle  is  adopted 
in  the  laws  of  Scotland,  where  an  otherwise  lawful  act  is  forbidden 
"if  done  in  cemulationem  vicini"  (Bell's  Principles,  §  96(5);  but  this 
principle  has  not  found  a  place  in  our  law. 

The  question  in  this  case,  therefore,  as  it  seems  to  me,  resolves 
itself  into  an  inquiry  whether  the  defendant  exercised  his  right 
of  enjoying  the  subterraneous  waters  in  a  reasonable  manner. 
Had  he  made  the  well  and  used  the  steam-engines  for  the  supply 
of  water  for  the  use  of  his  own  property  and  those  living  on  it, 
there  could  have  been  no  question.  If  the  number  of  houses  upon 
it  had  increased  to  any  extent,  and  the  quantity  of  water  for  the 
families  dwelling  on  the  property  had  been  proportionately  aug- 
mented, there  could  have  been  no  just  grounds  of  complaint.  But 
I  doubt  very  greatly  the  legality  of  the  defendant's  acts  in 
abstracting  water  for  the  use  of  a  large  district  in  the  neighbour- 
hood, unconnected  with  his  own  estate,  for  the  use  of  those  who 
would  have  no  right  to  take  it  directly  themselves,  and  to  the 
injury  of  those  neighbouring  proprietors  who  have  an  equal  right 
with  themselves.  It  does  not  follow  that  each  person  who  was 
supplied  with  water  by  the  defendant  could  have  dug  a  well  him- 
self on  his  own  land,  and  taken  the  like  quantity  of  water,  so  that 
the  defendant  may  have  taken  much  more  than  would  have  been 
abstracted  if  each  had  exercised  his  own  ri^ht. 


758  action  (right  of). 


No.  16.  —  Chassmore  v.  Richards.    -Notes. 


The  same  objection  would  not  apply  to  the  abstraction  of  watei 
for  the  use  of  the  dwellers  on  the  defendant's  land,  even  though; 
they  carried  on  trades  requiring  more  water  (breweries,  for  exam- 
ple) than  would  be  used  for  mere  domestic  purposes  ;  it  would  still 
be  for  their  purposes  only.  But  in  this  case  there  has  been  an 
abstraction  of  water  for  purposes  wholly  unconnected  with  the 
enjoyment  of  the  defendant's  land. 

On  the  whole,  I  should  certainly  have  wished  to  give  this  im- 
portant case  farther  consideration  ;  but,  as  my  noble  and  learned 
friends  have  formed  their  opinions  upon  it,  I  acquiesce,  and  do  not 
give  my  advice  to  your  Lordships  to  reverse  the  judgment. 

Lord  Kingsdown.  My  Lords,  I  confess  that  I  am  unable  to  share 
in  the  doubts  that  have  been  expressed  by  my  noble  and  learned 
friend  opposite  in  the  able  and  elaborate  judgment  which  he  has. 
just  delivered.  I  entirely  concur  in  the  opinion  which  has  been 
given  by  the  Judges  unanimously  in  this  case,  and  for  the  reasons 
by  which  that  opinion  has  been  supported  ;  and  I  think  the  House 
is  greatly  indebted  to  those  learned  persons  for  the  admirable  rea- 
soning by  which  they  appear  to  have  removed  all  doubt  upon  one 
of  the  most  important  questions  that  ever  came  under  the  consid- 
eration of  a  court  of  justice. 

Lord  Chelmsford.  My  Lords,  I  ought  to  have  mentioned  that 
my  noble  and  learned  friend  Lord  Brougham,  who  is  compelled  to 
leave  the  House  to-day,  but  who  was  present  during  the  whole 
of  the  argument,  entirely  concurs  in  the  opinion  which  I  have 
expressed. 

Judgment  of  the  Court  of  Exchequer  Chamber  affirmed  with  costs- 
Lords  Journals,  27  July,  1859. 


ENGLISH   NOTES. 

There  is  a  clear  distinction  —  as  shown  by  the  cases  of  Hodgh'mson 
v.  Eunor  (1863),  4  B.,&  S.  229.  and  Ballard  v.  Tomlinson  (C.  A.  1885), 
29  Ch.  D.  115  ;  54  L.  J.  Gh.  454  (both  cited  under  Fletcher  v.  Eylands, 
pp.  270  and  271,  supra) — between  abstracting  Mater  which  would 
otherwise  find  its  way  by  percolation  to  plaintiff's  land,  and  sending 
polluted  water  so  as  to  percolate  into  plaintiff's  land  and  poison  the 
water  there.  And  such  a  plaintiff  has  a  right  to  restrain  the  defend- 
ant from  permitting  such  pollution  to  flow  from  his  land,  whether 
it  mixes  with  a  supply  of  water  already  there  (as  in  Eodghinsnn  r. 


SECT.  A'.  —  CASES   OF   LOSS    WHERE.  NO    RIGHT    OF    A.CTION.       759 

No.  16.  —  Chasemore  v.  Richards.  —  Notes. 

Ennor),  or  poisons  the  source  from  which  the  plaintiff  draws  water  by 
pumping  (as  in  Ballard  v.  Tomlinson). 

The  judgment  of  the  Lords  Justices  of  Appeal  in  Grand  Junction 
Canal  v.  Shugar  (1871),  L.  R.,  (i  Ch.  483,  is  an  express  decision  that, 
where  water  is  flowing  in  a  defined  channel,  it  is  an  injury  to  a  riparian 
proprietor  to  abstract  by  a  drain,  cut  near  the  channel,  water  which  has 
already  found  its  way  there.  But  the  Judicial  Committee  of  the  Privy 
Council,  on  appeal  from  the  Isle  of  Man,  in  Ballacorkish,  &c.  Mining 
Co.  v.  Dumbell  &  Harrison  (1873),  L.  E.,  5  P.  C.  49  ;  43  L.  J.  P.  ('. 
19,  held  that  the  owner  of  mines  by  reservation  has  a  right,  working 
the  mines  in  the  ordinary  way,  to  divert  water  by  percolation,  whether 
it  lias  already  found  its  way  into  a  defined  channel  or  not.  The  judg- 
ment, indeed,  seems  to  treat  Chasemore  v.  Richards  as  an  authority  for 
the  general  proposition  that  water  may  he  diverted  by  percolation  with- 
out injury.  But  this  view  was  unnecessary  for  the  decision,  is  con- 
trary to  the  decision  of  the  Lords  Justices  in  Grand  Junction  Canal 
Co.,  and  (it  is  submitted)  is  not  consistent  with  the  ratio  decidendi  of 
the  principal  case. 

In  an  Irish  case,  Black  v.  Ballymana  Commissioners  (1886),  17 
L.  lv.  Ireld.  459,  the  Vice  Chancellor  (Ciiattertox)  held  that  water 
flowing  underground  in  a  well-defined  channel  is  not  within  the 
principle  of  Chasemore  v.  Richards,  so  as  to  be  capable  of  being 
abstracted  without  injury  ;  and  that  it  is  not  necessary  that  the 
channel  should  be  known,  in  the  sense  of  having  been  exactly  ascer- 
tained before  the  discovery  of  the  abstraction :  but  that  whether  there 
is  a  defined  and  known  channel  is  a  question  of  evidence  by  inference 
from  sufficiently  obvious  indications  without  recourse  to  .recondite 
scientific  investigations. 

In  Brain  v.  Marfell  (1879),  41  L.  T.  455,  a  question  arose  upon  the 
terms  of  an  express  conveyance  by  defendant  of  a  well  with  the  right  of 
taking  water  from  it  through  pipes  through  defendant's  land,  and  a 
covenant  for  enjoyment  without  interruption  by  the  defendant  or  his 
assigns.  The  defendant  had  subsequently  sold  adjacent  land  to  a  rail- 
way company  who,  by  their  works,  drained  off  the  supply  of  water 
before  it  reached  the  spring.  The  Court  of  Appeal  (Coleridge,  C.  J., 
Bramwell  and  Brett,  L.  JJ. ),  affirming  the  judgment  of  POLLOCK, 
B.,  held  that  the  conveyance  assured  only  the  flow  of  water  after  it  had 
reached  the  well;  and  that  the  draining  of  the  water  before  it  reached 
the  spring  was  not  a  breach  of  the  covenant.  In  a  later  case.  Bowen  v. 
Sandford  (1888),  5  Times  K.  570,  the  defendant  had  purchased  part  of 
property  sold  in  lots,  subject  to  an  easement  in  favour  of  the  owners  or 
occupiers  of  other  lots  to  use  a  certain  spring.  He  subsequently  diverted 
the  water  by  a  cut,   tapping  a  defined  underground  channel,  by  which 


7 GO  ACTION  (right  of). 


No.  16.  —  Chasemore  v.  Richards.  —  Notes. 


the  water  found  its  way  to  the  spring.  Dexman,  J.,  granted  an  in- 
junction. The  Judge  seems,  indeed,  inclined  to  have  thought  that 
Chasem,ore  v.  Richards  would  not  apply  as  between  the  grantor  and 
grantee  of  an  easement  to  use  the  spring;  hut  if  that  was  the  ground  of 
decision,  it  is  hardly  consistent  with  that  of  the  Court  of  Appeal  in 
Brain  v.  Mar  fell. 

Lord  Wensleydale's  observations  in  the  principal  case  (p.  752  et 
seq.,  supra),  as  to  the  nature  of  the  rights  of  a  riparian  proprietor,  are 
cited  and  approved  by  Lord  Cairns  in  Lyon  v.  Fishynongers  Co.  (1876), 
1  App.  Cas.  001',  008;  46  L.  J.  Ch.  08,  and  by  the  judgment  of  the 
Judicial  Committee  in  North  Shore  Ry.  Co.  v.  Pion  (1889),  11  App. 
Cas.  012,  621;  59  L.  J.  P.  C.  25. 

Where  a  superior  riparian  owner  takes  water  from  the  stream  (whether 
for  his  own  purposes  or  for  the  use  of  a  neighbour),  and  returns  the 
water  to  the  stream  undiminished  and  unpolluted,  no  cause  of  action 
arises  to  the  inferior  riparian  owner.  Keiisit  v .  Great  Eastern  Ry.  Co. 
(1883, 1884),  23  Ch.  D.  500;  27  Ch.  D.  122;  52  L.  J.  Ch.  688;  54  L.  J. 
Ch.  19.  It  appeared  on  the  evidence  that  the  water  was  used  for  cool- 
ing an  apparatus  used  in  a  manufacture.  It  had  been  part  of  the 
original  complaint  that  the  water  was  returned  diminished  in  quantity 
and  polluted;  but  this  was  admitted  to  be  unsubstantiated  by  the  evi- 
dence. There  was  no  complaint  of  damage  by  reason  of  the  water  being 
heated:  so  that,  in  effect,  there  was  no  damnum. 

AMERICAN   NOTES. 

The  doctrine  of  the  principal  case  is  accepted  in  the  United  States. 

It  may  be  found  in  some  of  the  earlier  cases,  as  Wheatley  v.  Baiy/h,  25 
Penn.  St.  528;  64  Am.  Dec.  721;  Greenhaf  v.  Francis,  18  Pickering  (Mass.). 
117  ;  Brown  v.  Illius,  27  Connecticut,  84  ;  71  Am.  Dec.  49  ;  Chaff  eld  v.  Wilson, 
28  Vermont,  40;  Roath  v.  Driscoll,  20  Connecticut,  533  ;  52  Am.  Dec.  352; 
Frazier  v.  Brown,  12  Ohio  St.  294.  Also  in  later  cases.  The  precise  cir- 
cumstances of  the  principal  case  existed  in  Chase  v.  Silcerstone,  02  Maine, 
17");  16  Am.  Rep.  419.  and  there  was  the  like  decision,  citing  the  principal 
case.  The  principal  case  was  cited  with  approval  in  Wilson  v.  City  of  New 
Bedford,  108  Mass.  261  ;  11  Am.  Rep.  352,  where  t lie  Chief  Justice  obiter  ob- 
serves :  "  The  percolating  water  belongs  to  the  owner  of  the  land  as  much  as 
the  land  itself,  or  the  rocks  and  stones  in  it.  Therefore  he  may  dig  a  well, 
and  make  it  very  large,  and  draw  up  the  water  by  machinery  or  otherwise,  in 
such  quantities  as  to  supply  aqueducts  for  a  large  neighbourhood.  lie  may 
thus  take  the  water  which  would  otherwise  pass  by  natural  percolation  into 
his  neighbour's  land,  and  draw  off  the  water  which  may  come  by  natural  per- 
colation from  his  neighbour's  land  ;  and  his  neighbour  may,  by  a  wall  or  other 
obstruction,  retain  the  water  which  is  upon  his  own  land,  and  prevent  the 
water  from   coming  into  his  soil."     The  principal  case  is  also  cited  with 


SECT.  V.  —  CASKS    OF   LOSS    WHERE   NO    KIGHT   OF    ACTION.       761 

No.  16.  —  Chasernore  v.  Richards.  —  Notes. 

approval,  although  not  strictly  in  point,  in  Taylor  v.  Fickas,  01  Indiana.  107; 
31  Am.  Rep.  114;  City  of  Emporia  v    Soden,2o  Kansas.  588;  37  Am.  Rep.  265. 

The  exact  circumstances  of  the  principal  case  again  arose,  and  the  same 
decision  was  made,  citing'  the  principal  case,  in  Village  of  Delhi  v.  Youmans, 
45  New  York,  362 ;  0  Am.  Rep.  100,  and  the  same  doctrine  was  necessarily 
implied  in  Bliss  v.  Greeley,  45  New  York,  fill  ;  6  Am.  Rep.  157,  in  which  coun- 
sel cited  the  principal  case.  The  same  doctrine  in  Xoc  Albany,  Sfc.  R.  Co.  v. 
Peterson,  14  In  liana,  112 ;  77  Am.  Dec.  (Si):  Hour/an  v.  Milwaukee,  8fc.  11.  Co., 
35  Iowa.  558;  14  Am.  Rep.  502.  See  Bloodgood  v.  Ayers,  37  Hun  (New  York 
Supreme  Ct.),  356;  108  New  York,  400;  2  Am.  St.  Rep.  4L!:  South.  Pac.  11. 
Co.  v.  Dufour,  95  California,  615;  19  Lawyers'  Rep.  Annotated, 92,  with  notes. 

In  P/ie/ps  v.  Nowlen,  72  New  York,  39;  28  Am.  Rep.  93,  the  court  went 
still  further,  and  held  that  where  defendant  had  a  spring  on  his  own  land, 
surrounded  by  an  embankment  partly  artificial,  which  raised  the  water  in  a 
well  on  the  plaintiff's  land,  he  was  justified  in  digging  a  ditch  through 
the  embankment,  restoring  the  water  to  its  natural  condition,  and  lowering 
the  water  in  the  plaintiff's  well,  although  he  did  it  to  divert  the  water 
from  the  plaintiff's  well,  but  it  did  not  appear  to  have  been  done  malici- 
ously. After  citing  the  principal  case  the  court  said:  "'The  rules  last  stated 
may  perhaps  be  applied  in  cases  where  it  is  entirely  obvious  that  the  act  was 
done  solely  for  the  purpose  of  inflicting  a  wrong,  and  with  no  intention  of 
vindicating  a  right  or  preventing  a  wrong  being  done  to  the  interests  of  another. 
But  not  a  single  case  is  cited  that  sustains  the  doctrine  that  the  owner  of  land 
cannot  assert  a  legal  right,  while  as  we  have  seen  there  is  considerable  author- 
ity in  the  contrary  direction,"  &c.     See  note  to  this  case,  28  Am.  Rep.  101. 

In  Chesley  v.  King,  74  Maine,  104;  4:>  Am.  Rep.  509,  it  was  held  that  one 
who  accepts  a  deed  reserving  a  right  to  draw  water  from  a  spring,  and  after- 
wards, for  the  sole  and  malicious  purpose  of  cutting  off  the  water  percolating 
to  the  spring,  digs  a  well  on  the  land  so  conveyed,  is  liable  to  the  grantor  for 
the  injury  ensuing.  The  principal  case  is  cited  and  its  doctrine  accepted,  and 
Phelps  v.  Noiclen  is  distinguished  on  the  ground  of  the  absence  of  malice, 
and  the  court  admit  "  a  conflict  of  authority  either  in  decisions  or  dicta  upon 
this  point"  (of  malice)  "some  courts  of  high  standing  —  notably  those  of 
New  York,  Pennsylvania,  and  Vermont  —  having  said  in  some  of  their  cases 
broadly,  in  substance,  as  in  Glendon  Iron  Co.  v.  Uhler,  75  Penn.  St.  407:  L~> 
Am.  Rep.  599,  that  the  commission  of  a  lawful  act  does  not  become  action- 
able although  it  may  proceed  from  a  malicious  motive,"  and  calls  this  a 
"questionable  dogma."  In  Lybe's  Appeal,  106  Penn.  St.  020;  51  Am.  Rep. 
542,  the  circumstances  were  like  those  in  Chesley  v.  King,  excepting  that  the 
defendant's  acts  were  in  good  faith ;  it  was  held  that  he  should  not  be 
restrained. 

But  where  subterranean  water  flows  in  a  distinct  channel  on  one's  land,  he 
may  not  maliciously  or  negligently  divert  it  to  the  injury  of  a  lower  proprie- 
tor. Haldeman  v.  Bruckhart,  45  Penn.  St.  514;  84  Am.  Dec.  511.  And  so 
an  adjoining  landowner  may  not  divert  it  from  the  land  in  which  it  flows 
any  more  than  if  it  were  on  the  surface.  Burroughs  v.  Saterlee,  67  Iowa,  396  ; 
56  Am.  Rep.  350.     So  in  Wheatley  v.  Bough,  supra. 


7G2  ACTION   (RIGHT   of). 


No.  16.  —  Chasemore  v.  Richards.  —  Notes. 


If  the  acts  complained  of  are  unnecessary  and  in  derogation  of  a  grant  or 
in  violation  of  a  covenant,  an  action  lies.  Johnstown  Cheese  Manuf.  Co.  v. 
Veghte,  69  New  York,  16;  25  Am.  Rep.  125.  And  so  if  merely  negligent. 
Collins  v.  Charliers  Valley  Gas  Co.,  131  Penn.  St.  143  ;  17  Am.  St.  Rep.  791  ;  6 
Lawyers'  Rep.  Annotated,  280.  In  the  latter  case  the  court  said  :  "  Since  the 
decisions  in  Acton  v.  Blundell  and  Wheatley  v.  Baugh,  probably  more  deep 
wells  have  been  drilled  in  western  Pennsylvania  than  had  previously  been  dug 
in  the  entire  earth  in  all  time"(!)  To  the  same  effect.  Kinnaird  v.  Stand- 
ard Oil  Co.,  89  Kentucky,  468;  25  Am.  St.  Rep.  545;  7  Lawyers'  Annotated 
Rep.  451. 

The  case  of  Swell  v.  Cults,  50  New  Hampshire,  439  ;  9  Am.  Rep.  276,  has 
been  sometimes  thought  to  conflict  with  the  rule  of  the  principal  case,  but  it 
simply  asserted  the  right  to  keep  off  surface  water  flowing  from  other  premises. 

Mr.  Justice  Story,  following  Balston  v.  Betisted,  1  Camp.  464,  seems  to  have 
thought  that  an  action  would  lie  for  sinking  a  well  in  such  a  manner  as  to 
intercept  the  water  flowing  to  a  neighbour's  spring,  after  the  right  had  been 
claimed  and  used  for  more  than  twenty  years.  Dexter  v.  Providence  Aque- 
duct Co.  1  Story,  392. 

But  this  doctrine  seems  now  to  be  repudiated. 

No  claim  by  prescription  can  arise  in  cases  where  the  one  against  whom 
the  prescription  is  claimed  had  no  right  to  complain  of  the  use  which  the 
other  person  made  of  the  water.  Hanson  v.  McCue,  42  Cal.  303;  10  Am. 
Rep.  299. 

No  right  to  percolating  water  can  be  acquired  by  prescription.  Wheatley 
v.  Baugh,  25  Penn.  St.  528;  64  Am.  Dec.  721;  Delhi  v.  Youmans,  50  Barb. 
316  :   Frazier  v.  Brown,  12  Ohio  St.  291. 

In  Barnard  v.  Shirley  (Indiana),  34  N.  E.  Rep.  600,  defendants  sunk  an 
artesian  well  on  their  own  premises.  The  water  was  turned  into  a  small 
stream,  which  flowed  across  plaintiff's  land,  and  which  was  the  only  natural 
or  possible  means  of  escape.  Afterwards  the  water  was  found  to  have  medi- 
cinal properties,  and  a  sanitarium  was  erected  for  the  treatment  of  persons 
afflicted  with  various  diseases.  Held,  not  unlawful  to  build  and  thus  to 
operate  the  sanitarium,  where  no  negligence  or  malice  was  shown,  though 
the  water  was  polluted  thereby.  Citing  Acton  v.  Blundell,  Y2  Mees.  &  YV. 
324;  Smith  v.  Kenrick,  7  C.  B.  515;  Wilson  v.  Waddell,  L.  R.,  2  App.  Cas. 
9^>;   Cmmpton  v.  Lea,  L.  R.,  19  Eq.  115. 

In  Hague  v.  Wheeler,  Pennsylvania  Supreme  Court,  27  Atlantic  Reporter, 
714;  22  Sawyer's  Reports  Annotated,  141,  it  was  held  that:  "A  court  of 
equity  will  not  interfere  by  injunction  to  compel  a  landowner  who  has  sunk 
a  gas  well  on  his  own  premises,  without  malice  or  negligence,  to  stop  the 
flow  of  gas  therefrom,  which  has  proven  insufficient  in  quantity  to  enable 
him  to  utilise  it,  at  the  suit  of  adjoining  owners,  whose  wells  yield  gas  in 
sufficient  quantities  to  enable  them  to  utilise  and  market  it,  though  defend- 
ant's well  drains  the  common  reservoir,  and  thus  will  ultimately  reduce  the 
flow  of  plaintiffs'  wells."  The  court  below  said  that  this  question  had  "  never 
been  determined  in  any  court,"  and  continued:  "If  the  defendants  have  a 
right  to  take  gas  from  their  well  in  unlimited  quantities  for  their  own  profit. 


SECT.  V.  —  CASES    OF   LOSS    WHERE    NO    RIGHT    OF    ACTION.       763 


No.  16.  —  Chasemore  v.  Richards.  —  Notes. 


how  far  is  their  right  affected  by  the  fact,  if  it  be  a  fact,  that  their  motive  in 
Taking  it  is  not  profit,  but  injury  to  another,  —  malice  in  the  Legal  sense? 
There  are  many  dicta  and  some  authorities  "which  seem  to  declare  that  an 
act  done  in  the  exercise  of  a  lawful  right,  and  without  negligence,  may  be 
unlawful  if  done  with  express  malice.  Prominent  among  these  is  the  cure- 
fully  considered  case  of  Wheatley  v.  Baugh,  25  Pa.  St.  532,  in  which  the 
rule  of  the  civil  law  is  cited  with  approval  by  Chief  Justice  Lewis  to  the 
following  effect  :  '  lie  who,  in  making  a  new  work  upon  his  own  estate, 
uses  his  right  without  trespassing  either  against  any  law,  custom,  title,  or 
possession  which  may  subject  him  to  any  service  towards  his  neighbours,  is 
not  answerable  for  the  damages  which  they  may  chance  to  sustain  thereby, 
unless  it  be  that  he  made  that  change  with  a  view  to  hurt  others  without 
any  advantage  to  himself.'  The  same  doctrine  is  approved  in  Haldeman  v. 
Bruckkart,  15  Pa.  St.  514,  in  Coal  Co.  v.  Sanderson,  113  Pa.  St.  MS,  and 
•other  cases.  The  suggestion  that  one  may  not  do  maliciously  what  he 
might  lawfully  do  if  his  motives  were  good  is  found  in  many  English  cases, 
-among  which  are  Acton  v.  Blundell,  12  Mees.  &  *W.  338,  and  Chasemore  v. 
Richards,  7  II.  L.  Cas.  349.  It  has  been  more  or  less  clearly  made  in  the  fol- 
lowing, among  other  cases,  in  other  States  of  this  Union  :  Greenleaf  v.  Francis 
18  Pick.  117;  Roath  v.  Driscoll,  20  Conn.  533;  Carson  v.  Railroad  Co  .  8  Gray, 
423;  Hovoland  v.  Vincent,  10  Mete.  (.Mass.)  :J71  ;  Brown  v.  Illius,  25  Conn.  583; 
Gallagher  v.  Dodge,  48  Conn.  389.  I  have  not  been  able  to  find  any  case  how- 
ever in  which  a  party  has  been  actually  held  to  liability  on  this  ground  alone. 
On  the  other  hand,  there  are  many  cases  in  which  malice,  as  a  criterion  of 
liability  for  civil  damages,  is  distinctly  repudiated,  and  among  these  our  own 
cases  of  Covanhooan  v.  Hart,  21  Pa.  St.  495;  Jenkins  v.  Fowler,  21  Pa.  St.  3Q8; 
Fowler  v.  Jenkins,  28  Pa.  St.  176;  and  Iron  Co.  v.  Uhler,  75  Pa.  St.  407. 
"'Malicious  motives,'  says  Black,  J.,  in  Jenkins  v.  Fowler,  -make  a  bad  act 
Avorse  ;  but  they  cannot  make  that  wrong  which  in  its  own  essence  is  lawful. 
...  As  long  as  a  man  keeps  himself  within  the  law  by  duing  no  act  which 
violates  it,  we  must  leave  his  motives  to  Him  who  searches  the  heart.'  To 
the  same  effect  are  Mahan  v.  Brown,  13  Wend.  201  ;  Clinton  v.  Myers,  46  X.  Y. 
511  ;  Phelps  v.  Nowlen,  72  X.  Y.  39;  Sonth  Royalton  Bank  v.  Suffolk  Bank,  27 
Vt.  505;  Chatfehl  v.  Wilson,  28  Yt.  40. 

"  Without  lengthening  out  this  opinion  by  pointing  out  the  distinctions 
between  these  cases,  it  is  enough  to  say  that  my  mind  inclines  strongly  to  the 
conclusion  that  the  presence  or  absence  of  malice  cannot  of  itself  determine 
the  liability  of  an  owner  of  land  for  an  act  done  upon  it.  If  the  act  is  lawful 
when  done  with  innocent  intentions,  it  is  no  less  so  because  the  motives  were 
bad.  If  these  defendants  might  lawfully  drill  a  hole  into  the  gas-hearing 
rock,  and  suffer  the  valuable  gas  to  escape,  because  they  foolishly  Out  hon- 
estly believed  that  the  use  of  natural  gas  is  an  injury  to  mankind,  they  may 
<Io  so  for  the  purpose  of  keeping  their  neighbour  from  getting  it,  even  if  the 
motive  is  purely  malevolent.  Such,  in  my  opinion,  is  the  weight  of  the 
authorities,  as  well  as  the  reason  of  the  case.  Put  this  assumes  that  the  act 
done  with  malicious  intent  invades  no  legal  right  of  another.  The  cases  are 
all  of  this  character,  or  were  so  regarded  by  the  courts  deciding  them.  On 
the  other  hand,  the  cases  which  seem  to  announce  a  different   doctrine  ileal 


764  ACTION  (right  of). 

No.  16.  —  Chasemore  v.  Richards.  —  Notes. 

with  rights  which  are  not  absolute  and  exclusive,  but  qualified  and  correlative.'' 
This  was  sustained  on  appeal,  the  court  observing:  '"We  cannot  find  any 
rule  of  law  or  any  principle  of  equity  on  which  such  an  injunction  can  rest. 
The  scope  of  the  golden  ride  may  be  sufficiently  ample  to  cover  this  case,  and 
it  may  be  that  it  would  require  an  owner  to  surrender  to  his  neighbour  so 
much  of  his  own  property  as  he  could  not  turn  to  his  own  advantage,  if  his 
neighbour  was  so  situated  that  he  could  profit  by  it.  Assuming  this  to  be  so, 
"the  moral  obligation  so  arising  is  not  enforceable  by  civil  process.  The 
owner  of  timber  may  pile  it  in  heaps,  and  burn  it,  as  was  done  in  the  early 
settlement  of  the  country,  notwithstanding  the  fact  that  his  neighbour  has  a 
sawmill  and  all  the  facilities  for  preparing  the  sawed  lumber  for  market  and 
converting  it  into  money.  The  power  of  the  owner  of  the  timber  over  it  is 
neither  greater  nor  less  because  of  his  neighbour's  readiness  and  ability  to 
market  it.  An  owner  of  land  may  have  a  deposit  of  coal  under  some  portion 
of  it  so  small  in  extent,  or  with  such  an  inclination,  as  to  make  it  impossible 
for  him  to  mine  through  his  own  tract  without  a  greater  cost  to  him  than  the 
value  of  the  mined  coal  when  brought  to  the  surface.  His  neighbour  may  have 
an  open  mine  that  reaches  it,  and  through  which  it  could  be  brought  at  a  fair 
profit.  These  circumstances  do  not  affect  the  title  of  the  owner  of  the  coal, 
or  confer  any  right  on  the  adjoining  mine-owner;  but  it  is  said  that  the  oil 
and  gas  are  unlike  the  solid  minerals,  since  they  may  move  through  the 
interstitial  spaces  or  crevices  in  the  sand  rocks  in  search  of  an  opening  through 
which  they  may  escape  from  the  pressure  to  which  they  are  subject.  This  is 
probably  true.  It  is  one  of  the  contingencies  to  which  this  species  of  property 
is  subject.  But  the  owner  of  the  surface  is  an  owner  downward  to  the  centre, 
until  the  underlying  strata  have  been  severed  from  the  surface  by  sale.  What 
is  found  within  the  boundaries  of  his  tract  belongs  to  him  according  to  its 
nature.  The  air  and  the  water  he  may  use.  The  coal  and  iron  or  other  solid 
mineral  he  may  mine  and  carry  away.  The  oil  and  gas  he  may  bring  to  I  he 
surface  and  sell,  in  like  manner,  to  be  carried  away  and  consumed.  His 
dominion  is,  upon  general  principles,  as  absolute  over  the  fluid  as  the  solid 
minerals.  It  is  exercised  in  the  same  manner,  and  with  the  same  results.  He 
cannot  estimate  the  quantity  in  place  of  gas  or  oil.  as  lie  might  of  the  solid 
minerals.  He  cannot  prevent  its  movement  away  from  him,  towards  an  out- 
let on  some  other  person's  land,  which  may  be  more  or  less  rapid,  depending 
on  the  dip  of  the  rock  or  the  coarseness  of  the  sand  composing  it;  but  so  long 
as  he  can  reach  it  and  bring  it  to  the  surface  it  is  his  absolutely,  to  sell,  to  use, 
to  give  away,  or  to  squander,  as  in  the  case  of  his  other  property." 

One  may  lawfully  erect,  on  his  own  land,  a  high  division  fence,  with  the 
malicious  purpose  of  annoying  his  neighbour  and  obstructing  his  air  and 
light.  Riileoul  v.  Knox,  148  Massachusetts,  368 ;  2  Lawyers'  Reports  Anno- 
tated, 81 ;  but  see  Flaherty  x.  Moran,  81  Michigan,  52;  8  Lawyers'  Reports 
Annotated,  183,  to  the  contrary. 


SECT.  V.  —  (asks   OF    LOSS    WHERE   NO    RIGHT   OF   ACTION.       765 

No.  17.  —  Sutton  v.  Johnsto:ie.       Rule. 


No.  17.  —  SUTTON   v.  JOHNSTONE. 

JOHNSTONE  v.  SUTTON  in  error, 
(k.  b.  ex.  ch.  and  ii.  l.  1785-1787.) 

HULK. 

An  action  will  not  (in  the  opinion  of  Lord  Mansfield)  lie 
by  a  naval  officer  against  his  superior  in  command  for 
a  malicious  prosecution  before  a  court-martial,  even  al- 
though there  was  no  probable  cause. 

.       .*  .  . 

But  where  the  prosecution  is  for  disobedience  to  orders, 

disobedience  in  fact  is  probable  cause,  although  such  dis- 
ced ience  has  been  found  by  the  sentence  of  the  court- 
martial  to  have  been,  in  the  circumstances,  excusable. 

Sutton  v.  Johnstone. 
Johnstone  v.  Sutton.    ' 

1  Revised  Reports  257  >  (s.  c.  1  T.  R.  493,  1  Bro.  P.  C.  76). 

The  declaration  in  the  action  (by  the  first  count)  stated,  in  effect, 
as  follows  :  — 

In  the  prosecution  of  the  war  against  France,  a  British  squadron 
was  sent  on  a  particular  service  under  the  command  of  the  defen- 
dant, Johnstone.  The  squadron  sailed  on  that  service  to  Port  Pray  a 
Eoad,  Santiago.  The  plaintiff,  Sutton,  was  a  captain  in  command 
of  the  Isis,  one  of  the  ships  of  the  squadron.  On  the  16th  of  April, 
1781,  the  squadron  was  attacked  by  a  French  squadron  ;  and  after 
the  action,  the  French  squadron  sailed  away.  Johnstone,  as  com- 
mander of  the  squadron,  thereupon  ordered  the  commanders  of  the 
English  ships  to  slip  their  cables  and  put  to  sea  after  the  French 
squadron  ;  and  subsequently  signalled  to  the  squadron  to  form 
line  of  battle  and  bear  down  upon  the  enemy,  which  they  did 
about  sunset.  No  further  engagement  however  took  place,  and 
the  English  squadron  returned  to  Port  Praya  B.oad.  The  declara- 
tion then  alleges  that  the   plaintiff,  Sutton,  did  his  best,  having 

1  The  abridgment  of  this  ense  as  con-  permission)  followed,  subject  to  some  fur- 
tained  in  the  Revised  Reoorts  is  here  (with     ther  curtailment  of  the  arguments.  —  H.  C. 


'66  ACTION  (right  of). 


No.  17.  —  Sutton  v.  Johnstone. 


regard  to  the  condition  of  bis  ship  (the  Isis),  to  obey,  and  did  not 
wilfully  disobey,  the  orders,  and  that  he  did  not  wilfully  or 
improperly  fall  out  of  his  place  in  the  line.  It  is  however  to  be 
inferred,  both  from  the  facts  directly  set  forth  in  the  declaration 
and  from  the  finding  of  the  court-martial  stated  in  a  later  part 
of  the  declaration,  that  some  delay  took  place,  in  consequence  of 
the  condition  of  the  Isis,  before  her  cable  was  actually  slipped, and! 
that  further  time  was  lost  in  clearing  the  wreck  of  the  fore-topmast ~ 
so  that  the  Isis  fell  behind,  and  did  not  at  once  take  up  her 
station  in  the  line  of  battle.  It  is  however  stated  that  she  was-. 
in  her  place  when  the  English  squadron  bore  down  upon  the 
enemy  about  sunset. 

The  gist  of  the  charge  laid  in*  the  declaration  was  that  the  de- 
fendant,  well  knowing  the  premises  (i.  c,  that  the  plaintiff  did. 
his  best,  having  regard  to  the  condition  of  the  ship,  and  that  he 
did  not  wilfully  or  improperly  disobey  orders  or  fall  behind,  &c.);. 
but  maliciously  contriving  to  hurt  the  plaintiff  in  his  good  name: 
and  reputation  as  a  captain  in  His  Majesty's  service,  and  to  deprive 
him  of  his  rank  of  captain  and  commander  of  the  Isis,  and  of  the 
profits,  &c,  falsely  and  maliciously,  and  without  any  reasonable  or 
probable  cause,  charged  and  accused  the  plaintiff  with  disobedience 
of  orders  in  not  cutting  his  cables  and  putting  to  sea  after  the 
enemy  ;  and  for  falling  a-stern  after  he,  the  said  plaintiff,  had  joined 
the  squadron  ;  and  not  keeping  up  in  the  line  of  battle  ;  and  after- 
wards, at  Port  Praya  Road,  under  colour  and  pretence  of  the  said 
supposed  crimes,  falsely,  maliciously.,  wrongfully,  and  injuriously,, 
and  without  any  reasonable  or  probable  cause,  put  the  plaintiff 
under  arrest,  in  order  that  he,  the  plaintiff,  might  be  tried  by  a 
court-martial  for  the  supposed  crimes  ;  and  also  wrongfully,  mali- 
ciously, and  injuriously,  and  without  any  reasonable  or  probable  cause,, 
under  colour  and  pretence  of  the  said  supposed  crimes,  suspended  the 
plaintiff  from  his  post  of  captain  of  the  ship  Isis,  until  a  court-martial 
should  be  held  for  his  trial ;  and  maliciously,  and  without  any  rea- 
sonable or  probable  cause,  sent  him,  under  arrest,  to  the  East  Indies, 
and  from  thence  to  Great  Britain,  in  order  to  be  tried  by  a  court- 
martial  ;  and  maliciously,  and  without  any  reasonable  or  probable 
cause,  kept  him  under  such  arrest,  from  the  said  22nd  April,  1781r 
until  the  11th  December,  1783,  and  until  the  time  of  the  trial  and 
acquittal  next  mentioned. 

It   was   further   charged   that   the   defendant    maliciously  and 


SECT.  V.  —  CASKS    OF    LOSS    WHERE    NO    RIGHT    OF    A.CTION.       767 
No.  17.  —  Sutton  v.  Johnstone. 

without  probable  cause  procured  the  plaintiff  to  be  tried  by  a 
court-martial  upon  a  charge  of  delaying  the  public  service,  and 
also  of  disobedience,  of  orders  &c. ;  at  which  said  trial,  the  court- 
martial,  having  heard  the  witnesses.  &c.,  and  having  maturely 
and  deliberately  weighed  and  considered  the  whole,  was  of  opinion 
that  it  appeared  to  them  that  the  said  Sutton  (plaintiff)  did  not 
delay  or  discourage  the  public  service,  on  which  he  was  ordered, 
on  the  said  16th  April,  1781  ;  that  from  the  circumstances  proved 
of  the  condition  the  Isis  was  in,  it  appeared  to  the  said  court- 
martial  that  the  said  Sutton  was  justifiable  in  not  immediately 
cutting  or  slipping  the  cable  of  the  Isis,  after  his  getting  on  board 
her  on  that  day ;  and  that,  after  the  wreck  of  the  fore-topmast 
had  been  cleared,  the  said  Sutton  did  his  utmost  to  regain  his 
station  in  the  line  of  battle;  and  that  the  Isis  was  in  her  station 
about  sunset  of  that  day  ;  the  court  did  therefore  adjudge  the 
said  Sutton  to  be  honourably  acquitted  of  the  whole  of  the  said 
charge,  and  he  was  thereby  honourably  acquitted  accordingly. 

Special  damage  was  laid  by  reason  of  loss  of  prize-money  which 
the  plaintiff  would  have  gained  if  he  had  not  been  suspended  and 
removed  in  the  manner  stated. 

There  was  a  separate  count  (the  third),  charging  that  it  was 
the  duty  of  the  defendant  to  have  held  a  court-martial  immedi- 
ately at  Port  Praya  Eoad,  where  there  was  a  competent  number 
of  officers  for  the  purpose ;  but  that  the  defendant  wrongfully  and 
maliciously  delayed  the  holding  of  the  court-martial  for  an  un- 
reasonable time,  whereby  the  plaintiff  had  suffered  special  damage. 

The  defendant  pleaded  the  general  issue. 

This  cause  was  twice  tried  before  the  Chief  Baron  at  Guildhall, 
by  special  juries;  on  the  former  of  which  the  jury  found  a  verdict 
for  the  plaintiff,  with  £5000  damages;  and  on  the  latter  they 
gave  £6000. 

Afterwards,  a  motion  wras  made  in  the  Court  of  Exchequer, 
in  arrest  of  judgment,  which,  after  a  very  elaborate  discussion, 
was  refused.  And,  in  the  absence  of  the  Chief  Baron,  who  was 
indisposed,  — 

June  15,  1785, — Eyre,  Baron,  delivered  the  unanimous  opinion 
of  the  Court : 

In  this  case  of  Sutton  v.  Johnstone  it  has  been  moved  to  arrest 
the  judgment,  upon  objections  taken  to  the  first  and  third  counts 
in  the  declaration. 


768  ACTION    (RIGHT    OF). 


No.  17.  —  Sutton  v.  Johnstone. 


It  is  an  action  on  the  case  brought  by  the  plaintiff,  captain  of 
the  Isis,  ship  of  war,  one  of  the  squadron  under  the  command  of 
the  defendant:  and  the  first  count  imputes  to  the  defendant  the 
having  maliciously,  and  without  probable  cause,  charged  the  plain- 
tiff with  the  crimes  of  disobedience  of  orders,  and  the  delay  of  the 
public  service  in  which  the  squadron  was  engaged;  and,  upon  that 
charge,  having  put  him  under  arrest,  suspended  him  from  his  com- 
mand, sent  him  under  arrest  to  the  East  Indies,  and  from  thence  to 
Great  Britain,  in  order  to  be  tried  ;  and  having  maliciously,  and-with- 
out  probable  cause,  kept  him  under  arrest  till  his  trial ;  and  having 
maliciously,  and  without  probable  cause,  procured  him  to  be  tried 
by  a  court-martial,  upon  a  false,  malicious,  and  injurious  charge. 

This  being  the  ground  of  the  action,  expressed  in  the  first  count  of 
the  declaration,  it  is  objected,  in  arrest  of  judgment,  that  no  action 
for  a  malicious  prosecution  will  lie  for  a  subordinate  officer  against 
the  commander  of  a  squadron  for  improper  conduct  while  under  his 
command  ;  or,  as  put  by  one  of  the  counsel,  no  action  lies  for  a  sub- 
ordinate officer  against  his  superior  officer,  for  an  act  done  in  the 
course  of  discipline,  and  under  powers  incident  to  his  situation. 

These  propositions  have  been  supported  by  arguments  drawn  from 
the  analogy  the  case  is  supposed  to  bear  to  the  case  of  judges,  jurors, 
and  the  Attorney-General  in  respect  of  his  power  to  file  informa- 
tions ex'  officio,  and  from  general  principles  of  public  policy  and  con- 
venience;  and  they  have  been  rested  upon  those  grounds,  there 
being  no  adjudged  case  or  other  authority  in  our  law  that  can  be 
made  to  hear  upon  the  point,  so  as  to  give  it  any  support ;  on  the 
contrary,  it  was  necessary  to  press  into  the  service  distinctions  and 
refinements,  in  order  to  take  the  case  out  of  the  class  of  adjudged 
cases  hearing  very  strongly  the  other  way.  The  cases  I  allude  to 
are  those  of  Wall  v.M'Namara,  sittings  after  Michaelmas  1783,  at 
Westminster,  cor.  Lord  Maxsfield,  and  Fabrigas  v.  Mostyn,  Cowp. 
161,  which  being  cases  in  which  one  species  of  action  is  supported 
against  military  men  in  command,  —  in  one  instance  by  a  subordinate 
officer,  in  the  other  by  a  person  subject  to  the  powers  incident  to  the 
situation  of  those  military  men  in  command,  —  for  acts  done  by  i  olour 
of  their  authority,  or,  in  the  language  of  one  of  the  propositions,  under 
the  powers  incident  to  their  situation,  it  does  not  readily  occur  why 
another  species  of  action,  differing  from  those  in  form  rather  than 
in  substance,  .should  not  also  he  sustained.  These  cases  certainly 
cut  up  all  argument  drawn  from  public  policy  and  convenience ; 


SECT.  V.  —  CASES    OF   LOSS    WHERE    NO    RIGHT   OF    ACTION.       769 

No.  17.  —  Sutton  v.  Johnstone. 

because  public  policy  and  convenience,  it'  they  operate  at  all,  must 
operate  with  strength  sufficient  to  bar  one  species  of  art  ion  as 
much  as  another. 

The  Court  never  had  a  difficulty  upon  this  part  of  the  case. 
The  principle  of  the  action,  which  is  pretty  clearly  ascertained 
in  the  two  cases  of  Saville  v.  Roberts,  Gilb.  Rep.  185,  and  Jones 
v.  Gwynn,  10  Mod.  148,  is  general  and  universal.  In  the 
cases  alluded  to  of  judges  and  jurors,  it  cannot  apply,  because  the 
law  gives  faith  and  credence  to  what  they  do;  and  therefore  there 
must  always,  in  what  they  do,  be  cause  for  it ;  and  there  never  can 
be  any  malice  in  what  they  do.  The  presumption  of  law,  that 
judges  and  jurors  do  nothing  causelessly  and  maliciously,  does  not 
derogate  from  the  universality  of  the  principle,  "  that  where  it  can 
be  shown  that  one  man  has  causelessly  and  maliciously  accused 
another  of  a  crime,  or  has  otherwise  vexed  him  by  causelessly  and 
maliciously  exercising  upon  him,  to  his  damage,  powers  incident 
to  his  situation  of  superior,  the  injured  party  is  entitled  to  redress 
by  this  species  of  action."  The  commander-in-chief  of  a  squadron 
of  ships  of  war  is  in  the  condition  of  every  other  subject  of  this 
country,  who,  being  put  in  authority,  has  responsibility  annexed  to 
his  situation. 

The  propositions,  which  attempt  to  establish  a  distinction  for 
him,  are  dangerously  loose  and  indefinite.  It  is  said,  subordinate 
officers  may  be  brought  to  a  court-martial  for  improper  conduct, 
and  that  no  action  lies  for  anything  done  in  a  course  of  discipline, 
or  under  powers  incident  to  situation.  If  by  improper  conduct  be 
meant  a  breach  of  the  articles  for  the  government  of  the  navy,  if 
by  a  course  of  discipline  be  meant  exacting  that  which  the  discipline 
of  the  navy  requires,  if  by  what  is  done  under  powers  be  meant 
that  which  is  warranted  to  be  done  under  those  powers,  —  it  will  be 
agreed  simply,  for  doing  any  of  those  acts  no  action  will  lie  ;  for 
those  are  lawful  acts  in  themselves,  and  there  is  nothing  added  to 
make  them  unlawful  in  the  particular  case.  But  in  respect  of  the 
first  branch  of  this  proposition,  if  it  lie  meant  that  a  commander- 
in-chief,  has  a  privilege  to  bring  a  subordinate  officer  to  a  court- 
martial  for  an  offence  which  he  knows  him  to  be  innocent  of,  under 
colour  of  his  power,  or  of  the  dut}T  of  his  situation  to  bring  forward 
inquiries  into  the  conduct  of  his  officers,  the  proposition  is  too 
monstrous  to  be  debated. 

Under  the  second  branch  of  it,  it  may  not  be  fit,  in  point  of 
vol.  i.  —  40 


"70  ACTION    (RIGHT    OF). 


No.  17.  —  Sutton  v.  Johnstone, 


discipline,  that  a  subordinate  officer  should  dispute  the  commands 
of  his  superior,  if  he  were  ordered  to  go  to  the  mast-head;  but  if 
the  superior  were  to  order  him  thither,  knowing  that,  from  some 
bodily  infirmity,  it  was  impossible  he  should  execute  the  order, 
and  that  he  must  infallibly  break  his  neck  in  the  attempt,  and  it 
were  so  to  happen,  the  discipline  of  the  navy  would  not  protect 
that  superior  from  being  guilty  of  the  crime  of  murder.  And  one 
may  observe  in  general,  in  respect  of  what  is  done  under  powers 
incident  to  situations,  that  there  is  a  wide  difference  between 
indulging  to  situation  a  latitude  touching  the  extent  of  power,  and 
touching  the  abuse  of  it.  Cases  may  be  put  of  situations  so  criti- 
cal that  the  power  ought  to  be  unbounded,  but  it  is  impossible  to 
state  a  case  where  it  is  necessary  that  it  should  be  abused  ;  and  it  is 
the  felicity  of  those  who  live  under  a  free  constitution  of  government 
thai;  it  is  equally  impossible  to  state  a  case  where  it  can  be  abused 
with  impunity.  The  counsel  for  the  defendant  were  disposed  to 
agree  to  this  general  doctrine,  provided  that  the  question  was  not 
to  be  discussed  in  an  action  at  law,  which  unavoidably  brings  the 
inquiry  into  a  matter  of  fact  before  a  jury.  We  enter  into  all  the 
difficulties  in  the  situation  of  an  officer  whose  honour  and  fortune 
may  come  to  be  so  staked.  In  this  particular  case  they  have  had 
their  weight  with  us.  The  decision  has  not  been  a  hasty  one,  but 
considerations  of  this  nature  cannot  exclude  the  established  juris- 
diction of  the  country  ;  on  the  contrary,  those  jurisdictions  must 
be  presumed  to  be  equal  to  their  functions.  It  must  be  presumed 
that  they  will  do  their  duty  honestly  ;  if  they  do,  no  man  can 
have  much  to  fear.  To  situations  which  require  indulgence,  they 
will  show  it ;  but,  be  the  risk  more  or  less,  all  men  hold  their 
situations  in  this  country  upon  the  terms  of  submitting  to  have 
their  conduct  examined  and  measured  by  that  standard  which  the 
law  has  established.  Men  of  honour  will  do  their  duty  and  will 
abide  the  consequences. 

We  decide  against  this  first  objection  upon  the  mere  abstract 
state  of  it,  without  referring  to  the  particular  case  made  upon  this 
record,  —  which  is  certainly  the  most  advantageous  way  of  consider- 
ing it  for  the  defendant ;  for  undoubtedly  upon  this  record,  which 
must  now  be  taken  to  be  proved,  there  is  a  strong  case  stated  of 
hardship,  if  not  of  wrong,  injustice,  and  violence.  Before  I  leave 
this  head  of  objection,  I  will  observe  upon  an  order  of  the  justices 
of  gaol  delivery,  which  is  printed  at  the  end  of  Kelynge's  Eeports, 


SECT.  V.  —  CASKS    OF   LOSS   WHERE    NO    RIGHT    OF   ACTION.       771 
No.  17.       Sutton  v.  Johnstone. 

from  whence  it  was  inferred  that  the  Court  have  thought  them- 
selves at  liberty  to  control  this  species  of  action;  but  the  nature 
of  that  control,  which  was  the  withholding  of  the  evidence,  rather 
proves  that  the  action  itself  was  thought  to  be  beyond  the  reach 
of  any  control.  In  truth,  it  seems  to  be  nothing  more  than  substi- 
tuting a  particular  license  to  give  copies  upon  motion,  to  the  gene- 
ral license  which  the  officer  of  the  Court  had  been  permitted  to 
assume  ;  both  founded  upon  the  absolute  power  of  the  Court  over 
the  records  of  their  proceedings  for  felony,  while  they  remained  in 
their  custody.  The  object  of  this  order,  and  of  many  of  the  expres- 
sions we  meet  with  in  our  books,  tending  to  discourage  this  species 
of  action,  could  not  be  to  protect  any  particular  class  of  cases  from 
being  made  the  subject  of  the  action,  but  were  to  prevent  a  frivo- 
lous and  vexatious  action  of  this  species  being  brought  in  any 
case. 

The  next  objection  taken  to  this  count  was,  that,  this  being  an 
action  founded  on  the  want  of  probable  cause  for  making  the 
charge,  the  action  fails  ;  because  upon  the  face  of  the  record,  and 
upon  the  plaintiffs  own  showing,  there  was  probable  cause.  It  is 
upon  the  face  of  the  sentence  of  the  court-martial  that  the  prob- 
able cause  is  said  to  appear,  part  of  the  charge  being  for  disobe- 
dience of  orders  in  not  slipping  the  cable  of  the  Isis  immediately 
after  the  plaintiff  got  on  board.  The  language  of  the  sentence  is, 
that,  from  the  circumstances  proved  of  the  condition  the  Isis  was 
in,  it  appeared  to  the  court-martial  that  the  plaintiff  was  justifi- 
able in  not  immediately  cutting  or  slipping  the  cable  after  his  get- 
ting on  board  ;  from  whence  it  was  collected  that  it  appears  that 
the  plaintiff  did  disobey  the  orders  of  the  defendant,  and  that  he 
was  driven  to  justify  himself  by  circumstances,  and  that  his  ac- 
quittal proceeded,  not  upon  the  ground  of  his  not  having  disobeyed. 
but  on  the  ground  of  his  justification. 

Upon  this  part  of  the  case  there  has  been  some  hesitation 
amongst  us.  A  case  not  cited  in  the  argument  at  the  bar,  as  I 
recollect,  but  which  occurred  to  us  in  the  searches  that  have  been 
made,  gave  considerable  countenance  to  the  objection.  The  case  i 
refer  to  is  that  of  Reynolds  v.  Kennedy,  reported  in  Wilson  (1  Wils. 
232).  It  was  a  case  in  error  from  the  King's  Bench  in  Ireland  :  an 
action  was  brought  for  maliciously,  and  without  probable  cause,  prose- 
cuting for  condemnation  brandy  seized  as  forfeited  ;  the  declaration 
stated  that  the  brandy  was  condemned  by  the  sub-commissioners, 


"72  ACTION   (RIGHT   of.) 


No.  17.  —  Sutton  v.  Johnstone. 


and  that  that  condemnation  was  most  rightfully  reversed,  on  appeal 
to  the  commissioners.  The  judgment  was  arrested  in  the  Court 
of  King's  Bench  in  Ireland,  and  that  judgment  affirmed  here  ; 
and  it  was  said  by  Lord  Chief  Justice  Lee,  "  the  plaintiff  has,  by 
his  own  declaration,  shown  that  the  prosecution  was  not  malicious, 
because  the  sub-commissioners  gave  judgment  for  the  defendant ; 
and  therefore  we  cannot  infer  any  malice  in  him."  Perhaps  it 
would  have  been  more  correctly  stated  if  they  had  said,  And  there- 
fore we  will  infer  that  there  was  probable  cause  for  prosecuting 
that  brandy  to  condemnation.  To  my  apprehension,  I  confess, 
the  fact  of  the  orders  having  been  disobeyed  seems  fairly  to  be 
collected  from  the  sentence  which  takes  upon  itself  to  justify  the 
not  obeying,  and  to  make  that  the  ground  of  the  acquittal.  If  the 
state  and  condition  of  a  ship  be  such  that  an  order  given  cannot  be 
obeyed,  the  not  obeying  in  that  case  is  not  disobedience,  and  re- 
quires no  justification  ;  but  there  ought  to  be  an  acquittal  upon 
the  ground  of  the  charge  of  disobedience  not  being  made  out. 
But  if  a  subordinate  officer,  having  received  an  order  which  might 
be  obeyed,  does  not  obey,  because,  regard  being  had  to  the  state 
and  condition  of  his  ship,  he  is  of  opinion  that  such  an  order  ought 
not  to  have  been  issued  to  him,  in  this  case  the  not  obeying  is  dis- 
obedience in  my  apprehension,  and  he  would  be  to  justify  himself 
as  he  could. 

The  sentence  not  being  examinable  here,  I  am  relieved  from  the 
difficulty  of  comprehending  what  circumstances  can  amount  to  a 
justification  of  a  subordinate  officer,  in  disobeying  the  order  of  his 
superior.  We  are  bound  by  the  sentence  to  understand  the  plain- 
tiff in  this  case  to  stand  justified.  But  the  question  is,  whether 
we  are  not  also  bound  to  conclude,  from  this  sentence,  that  he  did 
in  fact  disobey  ?  and  whether  that  be  not  probable  cause  for  bring- 
in"  him  to  a  court-martial,  there  to  justify  himself  for  that  dis- 
obedience  ?  Doubtless  a  court-martial  is  not  bound  to  express 
itself  in  strict  technical  language,  and  this  court-martial  may  have 
used  in  this  case  the  word  justifiable  in  some  sense  different  from 
our  notion  of  justification  ;  but  having  acquitted  the  plaintiff  gen- 
erally of  the  charge  of  delaying  the  public  service,  which  was  one 
of  the  two  specific  charges  brought  against  him,  and  having  made 
this  special  acquittal  upon  the  charge  of  disobedience  of  orders,  it 
does  seem  as  if  they  meant  to  say  that  he  did  not  delay  the  public 
service,  but  that  he  did  disobey   the  order,  and,  for  some  reason 


SECT.  V.  —  CASKS   OF    LOSS    WHERE   NO    RIGHT   OF   ACTION.       773 

No.  17.    -  Sutton  v.  Johnstone. 

satisfactory  to  them,  was  justified  in  that  disobedience.  If  this 
be  the  true  meaning  of  the  sentence,  will  not  the  tad  of  disobedi- 
ence thus  established  he  a  probable  cause  for  bringing  him  to  a 

court-martial  ?  If  the  defendant  is,  upon  this  declaration,  to  be 
taken  to  be  ignorant,  or  if  he  is  not  averred  to  be  cognisant,  of  all 
the  circumstances  which  constituted  the  justification,  I  should  in 
that  case  hold  most  clearly  that  it  would  be  probable  cause. 
Reasonable  suspicion  was  probable  cause  in  the  ancient  proceed- 
ings in  conspiracy  :  there  is  more  than  suspicion  here,  the  corpus 
delicti  in  this  case  stands  confessed.  It  is  averred  against  the  de- 
fendant in  this  declaration  that  he  knew  the  ship  had  received 
damage,  that  he  knew  that  the  plaintiff  obeyed  his  orders  as  far 
as  the  state  and  condition  of  his  ship  would  permit;  but  it  is  not 
averred  that  he  knew  the  circumstances  of  the  state  and  condition 
of  the  ship,  which  were  proved  to  the  court-martial,  upon  which 
the  justification  is  built.  This  undoubtedly  is  rather  critical ;  but 
what  if  the  defendant  were  taken  to  be  cognisant  of  all  the  cir- 
cumstances of  the  state  and  condition  of  the  ship  proved  to  the 
court-martial ;  did  he  know,  or  was  he  bound  to  know,  that  they 
would  amount  to  a  justification  in  the  judgment  of  the  court-mar- 
tial ?  In  our  law,  justification  is  a  conclusion  of  law,  which  neces- 
sarily results  from  a  given  state  of  facts ;  and  yet  I  doubt  whether 
if  a  man  were  to  indict  one  for  murder,  who  had  committed  homi- 
cide, under  circumstances  within  the  knowledge  of  the  prosecutor, 
which  made  it  justifiable,  it  could  be  said  that  there  was  no  prob- 
able cause  for  preferring  that  indictment.  But  I  am  not  sure  that 
justification  in  the  law  martial  is  a  matter  of  equal  certainty  in  its 
nature,  so  as  to  impute  to  the  defendant  a  knowledge  that  he  was 
prosecuting  in  a  case,  where,  of  necessity,  there  must  be  an  acquittal 
upon  the  ground  of  justification,  the  fact  of  the  charge  being  es- 
tablished. These  are  questions  of  moment  and  difficulty,  upon 
which,  I  have  already  said,  we  have  hesitated;  and  we  shall  not 
now  give  an  opinion  upon  them  ;  because,  upon  consideration,  we 
are  of  opinion,  that  admitting,  for  the  sake  of  the  argument,  that 
probable  cause  did  appear  upon  this  record  for  making  a  charge  of 
disobedience  of  orders,  it  cannot  operate  to  arrest  this  judgment. 

The  defendant  is  charged  by  this  count  in  the  declaration  with 
having  maliciously,  and  without  probable  cause,  brought  the  plain- 
tiff to  a  court-martial  upon  one  entire  charge,  but  consisting  of 
two  distinct  articles  under  two  separate  articles  for  the  government 


ACTION    (KIGIIT   OF). 


No.  17.  —  Sutton  v.  Johnstone. 


of  the  navy :  the  first,  for  delaying  the  public  service ;  the  second, 
for  disobedience  of  orders.  I  have  observed  that  the  sentence  of 
the  court-martial  acquits  him  generally  of  the  first.  They  say  he 
did  not  delay  the  service.  It  is  impossible  therefore  to  find  in 
the  sentence  probable  cause  for  this  part  of  the  charge.  Then  it 
will  stand  thus :  the  plaintiff  charges  the  defendant  with  having 
maliciously,  and  without  probable  cause,  brought  the  plaintiff  to 
a  court-martial  upon  one  charge,  for  which  there  was  no  probable 
cause,  and  upon  another  charge,  for  which  there  was  probable  cause. 
The  declaration  is  therefore  felo  de  se  with  respect  to  the  latter,  but 
good  as  to  the  former.  In  that  case,  after  a  verdict,  the  jury  must 
be  taken  to  have  given  damages  for  that  part  of  the  case  only  which 
is  actionable.  This  is  familiar  in  the  case  of  the  action  for  words. 
The  words  in  one  count  may  consist  of  several  distinct  paragraphs 
or  periods,  some  actionable,  some  not.  It  is  no  objection,  after  a 
verdict,  that  some  of  the  words  given  in  evidence,  and  charged  in 
that  count,  are  not  actionable  ;  if  there  be  actionable  words  to 
which  the  damages  can  be  applied,  the  jury  are  presumed  to  have 
given  their  damages  for  the  words  which  are  actionable.  It  is 
enough  to  sustain  a  judgment  upon  this  count  that  a  cause  of 
action  appears  in  it;  that  which  does  not  amount  to  a  cause  of 
action,  is  merely  surplusage. 

It  is  further  objected  to  this  count  that  the  assignment  of  the 
special  damage  is  ill  laid.  The  count  states  that  the  plaintiff  lost 
a  large  sum  of  money,  —  namely,  £l'0,000,  —  which  he  would  have 
gained  if  he  had  not  been  suspended  and  removed  from  his  rank  and 
post  of  captain  of  the  Isis,  from  prizes  taken  by  the  Isis  and  the  other 
ships  of  the  squadron,  in  the  course  of  the  service,  and  during  his 
arrest  and  suspension.  It  is  objected  that  there  is  no  averment 
or  allegation  of  title  to  prize-money ;  that  it  does  not  follow  from 
the  fact  stated  that  the  prize-money  was  lost;  that  by  law  the 
prize-money  was  not  lost,  and  that  the  jury  have  therefore  found 
damages  which  by  law  could  not  be  found.  "We  are  clearly  of 
opinion  that  this  objection  must  be  overruled.  The  damages  are 
well  assigned  by  stating  that  the  loss  happened  by  reason  of  the 
wrong  complained  of:  the  rest  is  matter  of  evidence;  and  if  any- 
thing  which  can  now  be  suggested  would  have  proved  the  loss  to 
have  happened  by  that  means,  after  verdict  we  must  suppose  that 
proof  to  have  been  given.  The  objection  therefore  resolves  itself 
into  the  last  branch  of  it,  namely,  that  the  jury  have  found  damages 


SECT.  V.  —  (ASKS    OF   LOSS    WHERE    NO    RIGHT   OF    ACTION.       775 
No.  IT.  —  Sutton  v.  Johnstone. 

which  could  not  possibly  arise  in  the  case,  and  could  not  therefore, 
by  law,  be  found.  To  support  which  proposition,  it  has  been  argued 
that  a  suspended  captain  is  entitled  to  the  prize-money  for  captures 

made  during  the  time  of  his  suspension.  The  proclamation  must 
be  the  rule  by  which  this  point  is  to  be  decided.  By  the  proclama- 
tion the  captain  of  a  King's  ship,  who  shall  be  actually  on  board  at 
the  taking  of  any  prize,  shall  have  a  certain  proportion.  Is  one 
who  had  been  suspended  and  removed  from  his  rank  and  post  of 
captain,  and  was  in  that  state  of  suspension  when  the  prize  was 
taken,  the  captain  of  such  ship  actually  on  board  at  the  taking  of 
such  prize  ?  It  is  enough  to  state  the  question  ;  it  answers  itself. 
Not  having  original  jurisdiction  in  matter  of  prize,  we  cannot  de- 
cide that  question  so  as  to  affect  the  right  of  prize-money  ;  but 
we  are  obliged  to  decide  it  as  far  as  it  is  incidental  matter  in  this 
cause,  and  for  the  purpose  of  this  cause.  And  premising  this,  we 
hold,  in  this  case,  that  the  plaintiff',  by  reason  of  his  suspension 
and  removal,  did  lose  the  prize-money  which  he  would  have  gained 
from  prizes  taken  by  the  Isis  and  other  ships  during  his  suspension, 
and  consequently  that  this  is  well  assigned  as  special  damage  in 
this  action. 

It  is  objected  to  the  third  count  of  this  declaration,  the  griev- 
ance complained  of  in  which  is  the  refusing  and  neulectimj;  to 
hold  a  court-martial  for  the  trial  of  the  plaintiff  while  the  squa- 
dron was  under  the  defendant's  command,  and  then  keeping  him 
under  arrest  till  his  trial  in  Great  Britain,  that  this  is  damn  inn  sine 
injuria  ;  that  the  law  has  fixed  no  time,  short  of  the  term  of 
three  years,  within  which  courts-martial  are  to  be  held ,  and 
therefore  it  could  not  be  the  duty  of  the  commander  to  hold  a 
court-martial  at  any  time  within  that  period,  or  so  soon  as  he 
reasonably  and  conveniently  could  after  the  charge  exhibited,  and 
consequently  that  the  averments  that  it  was  the  duty  of  the  de- 
fendant to  hold  such  court-martial,  that  the  defendant  might 
reasonably  and  conveniently  have  held  a  court-martial,  and  that 
he  wilfully,  wrongfully,  and  injuriously,  and  contrary  to  his 
duty,  omitted,  neglected,  and  refused  to  hold  such  court-martial 
cannot  give  to  the  plaintiff'  a  cause  of  action.  The  answer  to 
i his  objection  is,  that  every  breach  of  a  public  duty,  working 
wrong  and  loss  to  another,  is  an  injury,  and  actionable;  that  the 
three  years  are  only  a  limitation  of  time,  beyond  which  no  court- 
martial  shall  be  held;  consistent  with  which  it  may  be   the  duty 


776  ACTION   (right  of). 


No.  17.  —  Sutton  v.  Johnstone. 


of  those  who  have  power  to  hold  courts-martial  to  hold  them 
within  a  much  shorter  space.  It  is  a  familiar  qualification  of 
powers  of  various  kinds,  that  they  should  be  executed  within  a 
reasonable  time.  Suspension  and  arrest  being  incident  to  the 
power  of  holding  a  court-martial,  it  seems  an  essential  ingredient 
in  such  a  power,  and  absolutely  necessary  to  qualify  the  rigour  of 
it,  that  it  should  be  executed  in  a  reasonable  time ;  otherwise  a 
power  of  holding  a  court-martial  would  necessarily  involve  in  it  a 
power  to  imprison  for  three  years  previous  to  the  trial,  which  could 
not  be  borne.  The  usage  of  the  navy  might  have  made  it  the  duty 
of  the  commander-in-chief,  in  a  case  where  it  did  not  speak  so 
strongly  for  itself :  how  it  becomes  his  duty  is  to  be  shown  in 
evidence,  in  proof  of  the  averment  that  it  was  his  duty,  and, 
after  verdict  finding  that  it  was  his  duty,  must  be  taken  to  have 
been  sufficiently  proved.  It  must  also  be  taken  to  have  been 
proved  that  there  was  no  impediment  in  the  way;  and  under 
these  circumstances  the  not  holding  a  court-martial,  and  the 
plaintiff's  having  sustained  loss  and  damage  thereby,  both  which 
circumstances  we  must  consider  as  proved,  constitute  a  good  cause 
of  action,  upon  which  judgment  may  be  now  given. 

The  Court  are  therefore  of  opinion  that  the  rule  for  arresting 
this  judgment  is  to  be  discharged.  Rule  discharged. 

Johnstone  v.  Sutton  in  error. 

The  defendant  having  brought  a  writ  of  error  in  the  Exchequer 
Chamber,  the  case  was  argued  at  length  in  February  and  November, 
1786,  before  Lord  Mansfield,  Chief-Justice  of  the  King's  Bench, 
and  Lord  Loughborough,  Chief-Justice  of  the  Common  Pleas. 
They  reported  their  opinion  to  the  Lord  Chancellor,  who  ac- 
cordingly reversed  the  judgment  of  the  Court  of  Exchequer. 

The  following  was  the  joint  opinion  of  Lord  Mansfield  and 
Lord  Loughborough.1 

On  the  2nd  day  of  February  last  we  heard  this  cause  argued  by 
counsel  on  both  sides;  and  upon  the  4th  instant  we  heard  it  again 
fully  argued  by  the  counsel  for  Captain  Sutton,  the  defendant  in 
error,  and  the  plaintiff  in  the  cause. 

1  The  course  of  proceeding  did  not  should  he  authentically  known,  the  Lord 
admit  of  the  opinion  being  delivered  as  a  Chancellor  allowed  the  parties  to  take 
formal   judgment ;    hut,  in   order   that  it     copies  of  it. 


SECT.  V. —  CASES   OF   LOSS   WHERE   NO    RIGHT   OF   ACTION.       777 

No.  17.  —  Sutton  v.  Johnstone. 

The  record  is  printed,  and  in  everybody's  hands;  there  is  there- 
fore no  occasion  to  state  it. 

The  general  question  is,  whether,  upon  the  face  of  the  declara- 
tion, after  a  verdict,  sufficient  matter  appears  to  show  that  the 
plaintiff  ought  not  to  recover? 

There  is  no  similitude  or  analogy  between  an  action  of  trespass, 
or  false  imprisonment,  and  this  kind  of  action.  An  action  of 
trespass  is  for  the  defendant's  having  done  that  which,  upon 
the  stating  of  it,  is  manifestly  illegal.  This  kind  of  action  is 
for  a  prosecution  which,  upon  the  stating  of  it,  is  manifestly 
legal. 

The  essential  ground  of  this  action  is,  that  a  legal  prosecution 
was  carried  on  without  a  probable  cause.  We  say  this  is  empha- 
tically the  essentia]  ground,  because  every  other  allegation  may 
be  implied  from  this ;  but  this  must  be  substantively  and  ex- 
pressly proved,  and  cannot  be  implied. 

From  the  want  of  probable  cause,  malice  may  be,  and  most 
commonly  is,  implied.  The  knowledge  of  the  defendant  is  also 
implied. 

From  the  most  express  malice,  the  want  of  probable  cause 
cannot  be  implied. 

A  man,  from  a  malicious  motive,  may  take  up  a  prosecution 
for  real  guilt,  or  he  may,  from  circumstances  which  he  really 
believes,  proceed  upon  apparent  guilt,  and  in  neither  case  is  he 
liable  to  this  kind  of  action.     Vide  Warren  v.  MaWieivs,  6  Mod.  73. 

After  a  verdict  the  presumption  is  that  such  parts  of  the 
declaration,  without  proof  of  which  the  plaintiff  ought  not  to 
have  had  a  verdict,  were  proved  to  the  satisfaction  of  the  jury. 
In  this  case,  to  support  the  verdict,  there  was  nothing  necessary 
to  be  proved  but  that  there  was  no  probable  cause,  from  whence 
the  jury  might  imply  malice,  and  might  imply  that  the  defen- 
dant knew  there  was  no  probable  cause 

The  question  of  probable  cause  is  a  mixed  proposition  of  law 
ami  fact.  Whether  the  circumstances  alleged  to  show  it  probable, 
or  not  probable,  are  true  and  existed,  is  a  matter  of  fact;  but 
whether,  supposing  them  true,  they  amount  to  a  probable  cause, 
is  a  question  of  law:  and  upon  this  distinction  proceeded  the  case 
of  Reynolds  and  Kennedy,  1  Wils.  'I'^'l. 

Thus  much  we  think  fit  to  premise  in  general,  as  a  material 
introduction  to  the  discussion  of  the  question  upon  this  record. 


'78  ACTION  (right  of). 


No.  17  —  Sutton  v.  Johnstone. 


The  objections  made  by  Johnstone,  the  defendant  in  the  cause, 
come  under  two  general  heads  :  — 

First,  Supposing  this  kind  of  action  to  lie. 

Secondly,  That  it  does  not  lie. 

First,  Supposing  it  to  lie,  the  defendant  has  made  the  following 
objections  :  — 

To  the  first  count,  — 

1st  objection.  That  there  appears  upon  record  a  probable  cause 
in  law. 

2nd.  That  the  declaration  alleges,  by  way  of  special  damage,  as  a 
legal  consequence  of  the  plaintiff's  suspension,  that  he  lost  his 
share  of  the  prize-money  acquired  by  the  ship  during  his  suspen- 
sion ;  which  the  defendant  says  is  not  true. 

Upon  the  third  count  it  is  objected  that  it  is  not  alleged  that 
the  defendant  had  a  commission  to  hold  courts-martial,  and  as 
commander-in-chief  he  had  no  such  authority. 

Secondly,  That  not  holding  a  court-martial  sooner,  if  any,  is  a 
mere  military  offence,  contrary  to  the  duty  of  the  defendant,  as 
commander;  and  the  guilt  has  not  been  tried  by  any  military 
tribunal,  and  in  this  respect  is  like  the  case  of  Barwis  v.  Keppel, 
I  Wils.  314. 

As  to  the  first  objection  under  the  first  head:  — 

The  charges  against  the  plaintiff  before  the  court-martial  were 
formally  two,  but  in  reality  and  effect  one,  • —  to  wit,  the  disobe- 
dience of  the  defendant's  verbal  orders,  public  signals,  &c. 

The  second  charge  is  a  consequence  of  the  first,  —  viz.,  for 
delaying  and  discouraging  the  public  service  on  which  he  was 
ordered  on  the  16th  of  April,  1781  ;  which  delaying  or  discour- 
aging arose  from  his  not  doing  as  he  was  ordered,  no  other  instance 
being  alleged. 

The  flight,  the  signals,  the  attempt  to  pursue,  the  enemy  sail- 
ing off,  are  all  admitted  by  the  declaration.  That  the  orders  were, 
in  fact,  not  obeyed,  seems  admitted  too ;  for  the  plaintiff  only 
avers  "  that  he  did  not  wilfully  and  willingly  disobey  ; "  but  the 
sentence  of  the  court-martial  shows  clearly  that  the  orders  were 
disobeyed,  and  that  the  plaintiff  justified  himself  by  a  physical 
impossibility  to  obey.     Nothing  less  could  be  a  justification. 

A  subordinate  officer  must  not  judge  of  the  danger,  propriety, 
expediency,  or  consequence  of  the  order  he  receives  :  he  must 
obey  ;  nothing  can  excuse   him  but  a   physical   impossibility.     A 


SECT.  V.  —  CASES    OF   LOSS   WHERE    NO    RIGHT    OF    ACTION.       779 
No.  17.  —  Sutton  v.  Johnstone. 

forlorn  hope  is  devoted,  —  many  gallant  officers  have  been  devoted. 

Fleets  have  been  saved,  and  victories  obtained,  by  ordering  partic- 
ular ships  upon  desperate  services,  with  almost  a  certainty  of  death 
or  capture. 

The  question  then  tried  by  the  court-martial  was,  whether  the 
plaintiff  was  justified  in  not  obeying  by  physical  impossibility  ? 
Now,  there  cannot  be  a  question  more  complicated.  It  involves 
the  precise  point  of  time,  the  state  of  the  wind,  the  state  of  the 
ship,  the  position  of  both  fleets.  It  requires  great  skill  in  navi- 
gation. There  is  no  question  likely  to  create  a  greater  variety  of 
opinions. 

It  is  possible  the  court-martial  at  Portsmouth,  at  a  great  dis- 
tance of  time,  may  have  thought  it  was  impossible  to  obey  ;  and 
yet  the  whole  squadron,  who  saw  the  action,  might  be  of  a  different 
opinion.  We  use  it  only  as  a  possible  supposition  :  but  we  are 
warranted  to  make  it  by  a  matter  of  fact  which,  it  seems,  came 
out  upon  the  trial  of  this  cause. 

In  the  printed  notes  of  my  Lord  Chief  Baron's  argument  upon 
granting  a  new  trial,  his  Lordship  says,  "  that  all  the  sea  officers, 
those  examined  for  the  plaintiff  as  well  as  those  who  were 
examined  for  the  defendant,  swore  they  should  have  held  them- 
selves bound  to  obey  the  orders  given,  if  they  had  been  in  the 
situation  in  which  the  plaintiff  was." 

Under  all  these  circumstances,  it  being  clear  that  the  orders 
wrere  given,  heard,  and  understood;  that  in  fact  they  were  not 
obeyed ;  that,  by  not  being  obeyed,  the  enemy  were  enabled  the 
better  to  sail  off ;  that  the  defence  was  an  impossibility  to  obey, 
(a  most  complicated  point),  —  under  all  these  circumstances,  we 
have  no  difficulty  to  give  our  opinion,  that,  in  law,  the  commodore 
had  a  probable  cause  to  bring  the  plaintiff  to  a  fair  and  impartial 
trial. 

This  probable  cause  goes  to  both  parts  of  the  charge,  —  the  dis- 
obedience and  obstructing  the  public  service.  But  if  it  went  to 
the  disobedience  only,  it  would  equally  avail  the  defendant  in  this 
cause.  For  it  is  not  like  the  case  put  of  a  plaintiff  recovering. 
where  he  lays,  in  the  same  sentence,  words  actionable  and  words 
not  actionable. 

Here  the  defendant  alleges  a  justification  of  the  arrest,  suspen- 
sion, and  trial.  If  his  justification  be  allowed,  there  is  an  end  of 
the  action. 


780  ACTION   (RIGHT   OF). 


No.  17.  —  Sutton  v.  Johnstone. 


If  the  defendant  were  right  in  trying  the  plaintiff  for  disobe- 
dience, the  adding  delay  and  obstructing  the  public  service  were 
only  two  or  three  superfluous  words,  which  created  no  additional 
trouble,  vexation,  or  expense  ;  and  this  action  is  not  adapted  to  so 
trifling  a  complaint. 

Second  objection  under  the  first  head  :  — 

The  right  to  the  prize-money  in* this  case  is,  we  understand,  still 
in  litigation  between  the  plaintiff  and  others,  who  are  no  parties  in 
this  cause ;  and  therefore,  without  necessity,  we  choose  to  give  no 
opinion  upon  it:  and  if  our  opinion  is  right  upon  the  other  points, 
this  is  not  necessary. 

The  third  count  is  upon  a  ground  collateral  to  the  prosecution. 
It  is  for  delaying  to  hold  a  court-martial  for  the  trial  of  the  plain- 
tiff while  the  squadron  under  the  defendant's  command  continued 
abroad,  contrary  to  the  duty  of  his  office  as  commander-in-chief. 

Objections  have  been  made  to  the  plaintiff's  recovering  upon 
this  count :  — 

1st,  That  it  doth  not  appear  upon  the  declaration  that  he  had 
authority  to  hold  a  court-martial. 

2ndly,  That  the  offence,  as  charged,  is  merely  military,  and  con- 
trary to  the  discipline  of  the  navy ;  and  the  defendant  has  not  yet 
been  tried  for  it  by  a  court-martial. 

3rdly,  Alleging  loss  of  prize-money  as  a  special  damage.  We 
have  already  said  why  we  decline  giving  any  opinion  upon  this. 

As  to  the  first,  the  averment  is,  that  by  law  it  was  incident  to 
the  duty  of  his  office  to  hold  a  court-martial:  now,  the  contrary  is 
manifest  from  the  statute  law  of  the  land.  There  is  no  fact  to  be 
tried  by  the  jury.  The  allegation  is  a  proposition  in  law,  and 
stands  upon  the  record.  It  is  false,  and  therefore  the  basis  of 
the  charge,  that  the  defendant  had  authority,  is  wanting;  and  this 
objection  we  think  fatal. 

As  to  the  second  objection,  the  delay  is  charged  to  be  contrary 
to  the  defendant's  duty  as  commander-in-chief.  There  is  no  rule 
of  the  common  or  statute  law  applicable  to  his  case.  .  It  is  a  mere 
military  offence.  It  is  the  abuse  of  a  military  discretionary 
power;  and  the  defendant  has  not  been  tried  for  it  by  a  court- 
martial. 

A  court  of  common  law,  in  such  a  case,  cannot  assume  an 
original  jurisdiction.  It  is  like  'the  case  of  Barvis  and  Keppel. 
This  objection  we  think  fatal. 


SECT.  V.  —  TASKS    OF    LOSS    WHERE    NO    RIGHT    OF   ACTION.       781 
No.  17.  —  Sutton  v.  Johnstone. 

This  is  our  opinion  upon  the  first,  second,  third,  and  fourth 
counts,  supposing  an  action  for  a  groundless  prosecution  before  a 
court-martial  to  lie ;  and  upon  this  opinion  no  question  will  arise 

whether  or  not  there  should  be  a  venire  de  novo. 

But  the  great  and  important  question  now  brought  into  judg- 
ment for  the  first  time,  is-,  whether  such  an  action  can  lie? 

The  occasion  has  often  arisen  at  different  periods  of  time,  when 
men  of  the  fleets,  put  upon  their  trials  before  a  court-martial,  have 
thought  the  charge  without  a  probable  cause,  and  have  warmly 
felt  the  injury  of  such  an  act  of  malice  or  oppression  :  yet,  till 
this  experiment,  it  never  entered  into  any  man's  head  that  such 
an  action  as  this  could  be  brought ;  consequently  there  is  no  usage, 
precedent,  or  authority,  in  support  of  it. 

This  case  stands  upon  its  own  special  ground. 

The  wisdom  of  ages  hath  formed  a  sea  military  code,  which  in 
the  last  reign  was  collected  and  digested  into  an  Act  of  Parliament. 
The  great  object  of  this  code  is,  that  the  duty  of  every  man  in  the 
fleet  shall  be  prescribed  and  regulated  by  rules  and  ordinances 
adapted  to  sea  military  discipline;  and  that  every  man  in  the  fleet, 
for  any  offence  against  his  duty  in  that  capacity  or  relation,  shall 
be  tried  by  a  court-martial. 

If  a  man  be  charged  with  an  offence  against  the  articles,  or 
where  the  articles  are  silent,  against  the  usage  of  the  navy,  his  guilt 
or  innocence  can  only  be  tried  by  a  court-martial. 

A  commander-in-chief  has  a  discretionary  power,  by  this  military 
code,  to  arrest,  suspend,  and  put  any  man  of  the  fleet  upon  his 
trial.  A  court-martial  alone  can  judge  of  the  charge.  But  this 
military  law  hath  foreseen  that,  though  it  is  necessary  to  give 
superiors  great  discretionary  power,  it  may  be  abused  to  oppression, 
and  therefore  has  provided  against  such  abuse  by  the  33rd  article. 

A  commander  who  arrests,  suspends,  and  puts  a  man  on  his  trial 
without  a  probable  cause,  is  guilty  within  that  article:  but  the  same 
jurisdiction  which  tries  the  original  charge,  must  try  the  probable 
cause ;  which  in  effect  is  a  new  trial.  And  every  reason  which 
requires  the  original  charge  to  be  tried  by  a  military  jurisdiction, 
equally  holds  to  try  the  probable  cause  by  that  jurisdiction. 

The  salvation  of  this  country  depends  upon  the  discipline  of  the 
fleet;  without  discipline  they  would  be  a  rabble,  dangerous  only  to 
their  friends,  and  harmless  to  the  enemy. 

Commanders,  in  a  day  of  battle,  must  act  upon   delicate  sus- 


782  ACTION  (right  of). 


No.  17.  —  Sutton  v.  Johnstone. 


picions ;  upon  the  evidence  of  their  own  eye  ;  they  must  give  des- 
perate commands  ;  they  must  require  instantaneous  obedience.  In 
case  of  a  general  misbehaviour,  they  may  be  forced  to  suspend  several 
officers,  and  put  others  in  their  places. 

A  military  tribunal  is  capable  of  feeling  all  these  circumstances, 
and  understanding  that  the  first,  second,  and  third  part  of  a  soldier 
is  obedience.  But  what  condition  will  a  commander  be  in,  if,  upon 
the  exercising  of  his  authority,  he  is  liable  to  be  tried  by  a  common 
law  judicature  ? 

If  this  action  is  admitted,  every  acquittal  before  a  court-martial 
will  produce  one. 

Not  knowing  the  law,  or  the  rules  of  evidence,  no  commander 
or  superior  officer  will  dare  to  act ;  their  inferiors  will  insult  and 
threaten  them. 

The  relaxation  and  decay  of  discipline  in  the  fleet  has  been 
severely  felt.  Upon  an  unsuccessful  battle,  there  are  mutual 
recriminations,  mutual  charges,  and  mutual  trials.  The  whole  fleet 
take  sides  with  great  animosity;  party  prejudices  mix.  If  every 
trial  is  to  be  followed  by  an  action,  it  is  easy  to  see  how  endless 
the  confusion,  how  infinite  the  mischief  will  be. 

The  person  unjustly  accused  is  not  without  his  remedy.  He  has 
the  properest  among  military  men.  Reparation  is  done  to  him  by 
an  acquittal.  And  he  who  accused  him  unjustly  is  blasted  for- 
ever, and  dismissed  the  service. 

These  considerations  incline  us  to  lean  against  introducing  this 
action.  But  there  is  no  authority  of  any  kind  either  way ;  and 
there  is  no  principle  to  be  drawn  from  the  analogy  of  other  cases, 
which  is  applicable  to  trials  by  a  sea  court-martial  under  the 
marine  law,  confirmed,  directed,  and  authorised  by  statute.  And 
therefore  it  must  be  owned  that  the  question  is  doubtful ;  and 
when  a  judgment  shall  depend  upon  a  decision  of  this  question, 
it  is  fit  to  be  settled  by  the  highest  authority. 

According  to  our  opinion  it  is  not  necessary  to  the  judgment 
in  this  cause.  Because,  supposing  the  action  to  lie,  we  think  judg- 
ment ought  to  be  given  for  the  defendant,  the  plaintiff  in  error. 

The  judgment  was  accordingly  reversed. 

In  the  House  of  Lords  (27  May,  1787) :  — 
The  original  plaintiff  (Sutton),  being  dissatisfied  with  this  judg- 
ment  of  reversal,  brought   a    writ   of   error   upon   it,  returnable 


SECT.  V.  —  CASES    OF    LOSS    WHERE   NO    RIGHT   OF   ACTION.       783 
No.  17.  —  Sutton  v.  Johnstone. 

in  Parliament.  The  points  relied  on  by  the  plaintiff  were  the 
following  :  — 

1st  error.- — The  contention  is  that  it  is  to  be  inferred,  from  the 
sentence  of  the  court-martial,  that  Sutton  was  guilty  of  disobedi- 
ence to  the  orders  of  Johnstone,  though  he  was  excusable  for  such 
disobedience  for  reasons  not  known  to  Johnstone.  But  it  does  not 
appear  that  the  court-martial  meant  either  that  Sutton  had  been 
guilty  of  disobedience,  or  that  the  justification  was  not  known  to 
Johnstone.  It  is  a  principle  of  law  that  every  intendment  must 
be  made  to  support  a  verdict,  and  none  to  destroy  it.  Malice  and 
want  of  probable  cause  having  been  expressly  averred  in  the 
declaration,  it  must  after  verdict  be  presumed  that  all  the  circum- 
stances disclosed  to  the  court-martial  were  before  known  to  the 
defendant. 

2nd  error. — If  it  is  meant  by  the  error  so  assigned  that  Sutton 
brought  the  action  simply  for  Johnstone's  having  him  tried  by 
court-martial,  the  record  is  not  properly  understood,  the  injury 
complained  of  being  that  Johnstone  brought  the  plaintiff  to  such 
trial  from  malicious  motives,  without  even  a  reasonable  and  prob- 
able cause,  and  with  a  perfect  knowledge  of  his  innocence,  with  a 
view  to  injure  and  oppress  him.  If  it  is  meant  that  such  conduct 
is  in  the  due  course  of  discipline,  the  proposition  is  wholly  unten- 
able. For  no  wrong  can  be  without  a  remedy,  and  the  courts  of 
common  law  are  the  only  tribunal  before  which  he  can  sue  for 
damages. 

3rd  error.  —  If  in  law  and  fact  it  was  possible  that  prize-money 
could  be  lost  to  Sutton  by  the  acts  complained  of,  the  loss  must 
now  be  taken  to  have  been  proved.  If  it  was  impossible,  it  must 
now  be  assumed  that  the  jury,  under  direction  of  the  Judge,  did 
not  take  this  item  of  claims  into  consideration. 

4th  error.  —  If  the  objection  is  meant  to  be  taken  on  the  ground 
that  the  courts  of  common  law  are,  from  the  nature  of  the  subject, 
unable  to  judge  of  it,  the  answer  is  that  the  courts  of  law  must 
be  supposed  competent  to  their  functions.  And  courts  having 
jurisdiction  of  the  cause  before  them  must  take  notice  of,  and 
•decide  upon,  matters  incidentally  arising,  though  they  may  be  of  a 
sort  over  which  the  court  has  not  original  jurisdiction. 

5th  error.  —  It  having  been  stated  in  the  declaration  that  it  was 
Johnstone's  duty,  as  commander  of  the  particular  expedition,  to 
have  held  a  court-martial,  it  must,  after  verdict,  be  assumed  to 


784  ACTION    ("RIGHT   OF). 


No.  17.  —  Sutton  v.  Johnstone. 


have  been  proved,  or  admitted,  that  the  defendant  (Johnstone)  had 
the  necessary  commission  to  hold  court-martials. 

The  arguments  relied  on,  on  behalf  of  the  defendant  (Johnstone), 
were  briefly  these  :  — 

The  bringing  of  the  plaintiff  to  trial  by  court-martial  is  an  act 
of  discipline  for  which  no  action  will  lie.  The  same  reasons  of 
public  policy  apply  to  a  commander-in-chief  as  to  a  judge  or 
juror ;  as  to  whom  no  action  lies  for  an  act  done  in  that  capacity, 
though  it  be  alleged  to  be  malicious.  By  statute  law  an  offence 
against  naval  discipline  must  be  tried  by  a  court-martial.  If  an 
action  lay,  the  jury  must  inquire  into  the  want  of  probable 
cause  (as  well  as  malice),  and  they  are  incompetent  to  this  inquiry 
for  the  same  reason  that  they  are  incompetent  to  try  the  original 
charge.  The  proper  remedy  for  an  officer  unjustly  treated  is  to 
bring  his  accuser  to  trial  before  a  court-martial  on  a  charge  of 
cruel  and  oppressive  behaviour.  The  want  of  being  aide  to  «  et 
satisfaction  in  damages  puts  him  in  no  worse  situation  than  t ! 
persons  who  may  suffer  wrong  from  the  other  persons  i  . 
whom  no  action  can  be  brought,  as  above  mentioned. 

But  supposing  such  an  action  would  lie,  enough  appear?  on 
the  record  to  arrest  the  judgment.  The  sentence  of  the  court- 
martial  stated  in  the  declaration  did  not  negative  the  facts  charged 
against  him,  but,  admitting  them  to  be  true,  declared  the  plaintiff'  to 
be  justifiable.  That  shows  a  reasonable  and  probable  cause  for  hav- 
ing preferred  the  charge.  By  the  22nd  article  of  war,  22  Geo.  II. 
c.  33,  disobedience  to  any  lawful  command  of  a  superior  officer  is 
made  liable  to  such  punishment  as  a  court-martial,  according  to 
the  degree  and  nature  of  the  offence,  shall  inflict ;  and  nothing  can 
justify  disobedience  but  a  physical  impossibility  to  obey.  The 
sentence  of  acquittal  cannot,  on  any  reasonable  construction,  be 
understood  as  implying  that  a  physical  impossibility  existed ;  so 
that  on  the  face  of  the  sentence  itself  the  justification  was  illegal ; 
and  this  furnishes  the  strongest  ground  for  saying  that  there  was 
a  reasonable  and  probable  cause  for  the  charge  Even  if  it  could 
be  inferred  from  the  sentence  that  there  was  a  physical  impossi- 
bility or  the  belief  of  a  physical  impossibility  of  obeying,  still  the 
fact  of  disobedience  existing  made  it  the  duty  of  the  commander- 
in-chief  to  bring  the  plaintiff  to  trial  by  a  court-martial,  for  them 
to  decide  whether  the  circumstances  did  constitute  such  alleged 
physical  impossibility.     And   if   there    could  be  any  justification 


SECT.  V.  —  CASKS    OF    LOSS    WHERE    NO    RIGHT    OF    ACTION.       785 
No.  17.  —  Sutton  v.  Johnstone.  —  Notes. 

short  of  physical  impossibility,  it  was  still  his  duty  to  bring  the 
circumstances  before  a  court-martial,  for  them  to  decide  whether 
they  amounted  to  such  justification. 

The  claim  for  damages  for  loss  of  prize-money  cannot  be  sus- 
tained as  the  legal  consequence  of  the  plaintiffs  arrest.  It  must 
be  assumed  that  on  his  acquittal  he  was  reinstated  in  his  full 
rights. 

The  charge  of  neglecting  to  hold  a  court-martial  is  liable  to  the 
same  objection  as  the  other  charges,  inasmuch  as  it  is  a  com- 
plaint against  a  public  officer  for  the  exercise  of  legal  powers  ;  and 
it  is  liable  to  the  further  objection  that  the  neglect  to  hold  a 
court-martial  in  order  to  oppress  and  injure  the  accused  is  an 
offence  against  the  articles  of  war,  and  must,  therefore,  in  the  form 
of  a  criminal  charge,  be  tried  by  a  court-martial. 

After  hearing  counsel  on  this  writ  of  error,  the  following  ques- 
tion was  put  to  the  Judges:  "What  judgment,  or  other  award, 
ought  to  be  made  on  the  record  as  it  lay  before  the  House?" 
And  Mr.  Justice  Gould  having  delivered  the  unanimous  opinion 
of  the  Judges  present,  that  the  judgment  given  in  the  Exchequer 
Chamber  ought  to  be  affirmed,  it  was  thereupon  ordered  and  ad- 
judged that  the  same  should  be  affirmed. 

ENGLISH   NOTES. 

The  broader  rule  as  laid  down  by  Lord  Mansfield  has  not  escaped 
question,  although,  since  the  decision  of  the  Queen's  Bench  in  Daw- 
kins  v.  Paulet  (1869),  L.  R.,  5  Q.  B.  94;  39  L.  J.  Q.  B.  53,  it  could 
not  now  be  questioned  except  in  an  appellate  court. 

The  case  of  Warden  v.  Bailey  (1811),  4  Taunt.  67,  is  only  impor- 
tant for  a  remark  of  Lawrence,  J.  (p.  75),  during  the  argument,  to 
the  effect  that  he  had  heard  from  good  private  information  that  the 
reasons  assigned  by  Lord  Maxsfield  were  not  adopted  by  the  House 
of  Lords,  though  the  judgment  in  the  Exchequer  Chamber  reversing 
that  of  the  Court  of  Exchequer  was  confirmed.  The  case  itself  was 
an  action  of  trespass  brought  by  an  inferior  officer  of  militia  against 
his  superior  officer  for  imprisonment.  The  Judge  (Gkose,  J.)  who 
tried  tlie  action  non-suited  the  plaintiff  on  the  authority  of  Sutton  v. 
Johnstone.  The  Court  of  Common  Pleas  set  aside  the  non-suit,  on  the 
ground  that  the  imprisonment  was  for  disobedience  to  a  command  re- 
lating to  a  matter  (the  attendance  of  the  soldiers  at  school)  outside  the 
scope  of  the  military  authority.  A  second  trial  having  resulted  in  a 
verdict  for  the  plaintiff,  the  case  was  brought,  on  a  bill  of  exceptions, 
vol.  i.  —  50 


?8G  ACTION    (RIGHT   OF). 


No.  17.  — ■  Sutton  v.  Johnstone.  —  Notes. 


before  the  Exchequer  Chamber,  where  judgment  was  given  for  the 
plaintiff  in  error  (the  original  defendant),  on  the  ground  that  there 
was  evidence  of  mutinous  language;  so  that  the  imprisonment  was 
justified,  whether  the  original  order  for  attending  school  was  valid  or 
not.     Bailey  v.  Warden  (1815),  4  ML  &  S.  400. 

The  question  of  privilege  came  up  in  a  crucial  form  in  Dawkins  v. 
Paulet  (1869),  L.  R.,  5  Q.  B.  94;  39  L.  J.  Q.  B.  53,  where  to  a  declara- 
tion for  libel  it  was  pleaded  that  the  alleged  libel  was  contained  in  a 
report  by  a  superior  officer  made  in  the  course  of  military  duty  to  the 
commander-in-chief;  and  it  was  replied  "that  the  libel  was  written  by 
the  defendant  of  actual  malice,  and  without  any  reasonable,  probable, 
or  justifiable  cause,  and  not  bond  fide,  or  in  the  bond  fide  discharge  of 
the  defendant's  duty  as  such  superior  officer."  On  demurrer  to  this 
replication,  it  was  held  (by  a  majority  of  the  court,  Mellor  and  Lush, 
JJ.,  against  the  dissent  of  Cockburn,  C.  J.),  that  the  replication  was 
bad;  for  that  no  action  will  lie  against  a  military  officer  for  an  act  done 
in  the  ordinary  course  of  his  duty  as  such  officer,  even  if  done  mali- 
ciously and  without  reasonable  or  probable  cause.  The  Lord  Chief 
Justice,  Cockburn,  cited  the  case  of  Warden,  v.  Bailey,  and  particu- 
larly the  observations  of  Lawrence,  J.,  as  showing  that  Lord  Mans- 
field's reasoning  had  not  the  authority  of  the  House  of  Lords;  and  he 
combated  Lord  Mansfield's  reasoning  on  the  question  of  policy.  The 
other  Judges,  Mellor  and  Lrsn,  JJ.  (the  former  delivering  an  opin- 
ion which  he  stated  to  have  had  the  concurrence  of  the  late  Mr.  Justice 
Hayes,  who  had  heard  the  arguments),  adopted  the  reasoning  of  Lord 
Mansfield,  which  they  considered  to  be  of  very  high  authority,  and 
applied  it  to  the  case  in  point. 

It  is  settled  law  that  no  action  will  lie  against  a  witness  for  what  he 
says  when  giving  evidence  before  a  court  of  justice.  And  it  has  been 
decided  by  the  House  of  Lords,  affirming  the  judgment  of  the  Exche- 
quer Chamber,  and  confirming  the  ruling  of  Mr.  Justice  Blackburn, 
which  was  challenged  by  a  bill  of  exceptions,  that  the  same  rule  applies 
in  the  ease  of  a  military  man  giving  evidence  (although  not  upon  oath) 
upon  a  military  inquiry  ordered  by  the  general  commanding-in-chief 
in  pursuance  of  the  Queen's  Regulations.  Dawkins  v.  Lord  Rokebi/ 
(H.  L.  1875),  L.  R.,  7  H.  L.  744;  45  L.  J.  Q.  B.  8.  In  the  judgment 
of  the  Exchequer  Chamber  (1873),  L.  R.,  8  Q.  B.  255,  271;  42  L.  J. 
Q.  B.  63,  the  decision  is  expressly  based  on  (amongst  other  authori- 
ties) Lord  Mansfield's  opinion  in  Sutton  v.  Johnstone,  and  the  decis- 
ion of  the  Queen's  Bench  in  Dawkins  v.  Paulet,  which  are  cited  in 
support  of  the  general  principle  that  "a  case  involving  questions  of 
military  discipline  and  military  duty  alone  are  cognisable  only  by  a 
military   tribunal,  and   not   by   a  court  of   law.''     The  same   absolute 


SECT.  V.  —  (ASKS   OF    LOSS   WHERK   NO    KIGHT   OF  ACTION.       787 

No.  17.  —  Sutton  v.  Johnstone. — Notes. 

privilege  for  words  spoken  extends  to  an  advocate  in  supporting  the  east' 
of  his  client  before  a  judicial  tribunal.  Minister  v.  Lamb  (C.  A.  1883), 
11 Q.  B.  I).  r>$$-  52  L:  J.  Q.  B.  726.  In  the  judgments  delivered  by  both 
Brett,M.  II.,  and  Frv,  L.  J.,  the  judgment  of  the  Exchequer  Chamber 
in  Dawkins  v.  Rokebg  is  cited  and  relied  on;  and  the  former  (p.  (>0I) 
also  refers  to  the  opinion  of  Lord  Mansfield  in  Reg.  \.  Skinner,  L  lift. 
J55  (also  cited  in  Dawkins  v.  Rokeby,  L.  li.,  8  Q.  15.  264),  that  "  neither 
party,  witness,  counsel,  jury,  nor  judge,  can  be  put  to  answer,  civilly 
or  criminally,  for  words  spoken  in  office."  That  must  of  course  be 
subject  to  the  implied  exception  of  criminal   liability  for  perjury. 

Apart  from  any  special  privilege,  it  is  a  well-known  proposition  of 
law  that  evidence  of  malice  and  want  of  probable  cause  are  both  neces- 
sary to  support  an  action  for  a  wrongful  prosecution.  And,  although 
absence  of  reasonable  and  probable  cause  is  in  itself  some  evidence  from 
which  malice  may  be  inferred,  it  is  not  conclusive;  and,  if  it  appears  and 
is  found  as  a  fact,  that  the  defendant  honestly  believed  the  charge  he 
made  against  the  plaintiff, —  although  he  has  not  taken  reasonable  care 
to  inform  himself  of  the  facts, —  it  has  been  decided  by  the  Court  of 
Appeal,  citing  the  principal  case  as  an  authority,  that  the  plaintiff  can- 
not, without  other  evidence  of  the  sinister  motive,  support  his  action. 
Brown  v.  Hawkes  (C.  A.  1892),  2  Q.  B.  718;  61  L.  J.  Q.  B.  151. 


AMERICAN   NOTES. 

Of  the  principal  case  it  is  said,  in  1  Hare  &  Wallace's  American  Leading 
Cases,  p.  202  :  "  The  reasons  given  by  Lords  Mansfield  and  Loughborough, 
for  the  reversal  in  the  Exchequer  Chamber,  have  always  been  admired,  as 
presenting  a  comprehensive  and  accurate  view  of  the  grounds  and  nature  of 
this  action."  It  is  cited  by  Mr.  Throop  (Public  Officers),  but  not  to  the  par- 
ticular point  expressed  in  the  rule. 

In  Parker  v.  Huntingtan,  2  Gray  (Mass.),  128,  the  court  were  '-inclined  to 
the  opinion,"  but  did  not  decide,  that  an  action  does  not  lie  against  a  district 
attorney  and  another,  for  maliciously  contriving  to  have  the  plaintiff  indicted, 
knowing  that  he  was  innocent. 

In  Conrad  v.  Ithaca,  Sj-c,  16  New  York,  106,  the  court  citing  Baron  Eyre's 
remark  in  the  principal  case,  that  "every  breach  of  a  public  duty,  working 
wrong  or  loss  to  another,  is  an  injury  and  actionable,"  observed:  "If  that 
remark  be  true,  it  would  of  course  follow  that  all  public  officers,  including 
commissioners  of  highways,  are  liable,  for  any  neglect  of  duty,  not  only  to 
public  prosecution,  but  to  a  civil  action  at  the  suit  of  any  party  injured.  Can 
this  position  be  maintained?  It  was  neither  affirmed  nor  disaffirmed  upon 
the  subsequent  argument  of  the  same  case  before  the  Chief  Justices  of  the 
King's  Bench  and  Common  Pleas,  who  decided  for  the  defendant  upon  other 
^grounds." 

A  ministerial  officer,  acti-ig  within  his  authority  and  with  due  care,  is  not 


788  ACTION  (right  of). 


No.  17.  —  Sutton  v.  Johnstone.  —  Notes. 


liable  to  any  person  who  may  be  injured  by  his  acts.  Sample  v.  Broadwell,  87 
Illinois,  017 ;  Wilmarth  v.  Burt,  7  Metcalf  (Mass.),  257;  Sage  v.  Laurainr  19 
Michigan,  137;  Orr  v.  Quiinby,  54  New  Hampshire,  500.  In  the  last  action  it 
was  held  that  an  agent  of  the  United  States,  entering  upon  and  doing  injury 
tii  land  in  the  prosecution  of  a  coast  survey,  will  be  liable  in  an  action  for 
tort,  unless  such  entry  and  injury  were  reasonably  necessary  for  the  purposes 
of  the  survey.     (Doe,  J.,  dissented  in  an  opinion  of  fifty  pages.) 

A  somewhat  analogous  case  is  Maurice  v.  Warden,  51  Maryland,  233 ;  39 
Am.  Rep.  384,  where  a  professor  at  the  United  States  Naval  Academy  at 
Annapolis  placed  his  written  resignation  in  the  hands  of  the  superintendent 
of  the  academy,  to  be  forwarded  to  the  Secretary  of  the  Navy.  The  superin- 
tendent being  required  by  law  to  indorse  his  opinion  thereon,  did  so,  stating 
why  he  thought  the  resignation  should  be  accepted.  Held,  that  this  indorse- 
ment was  presumptively  but  not  absolutely  a  privileged  communication.  The 
court  dissented  from  the  view  of  the  majority  of  the  court  in  Dan-kins  v.  Lord 
Paulel,  L.  R.,  5  Q.  B.  94,  holding  such  communications  to  be  absolutely  priv- 
ileged, and  adopted  the  view  of  Cockburn,  C.  J.,  that  they  are  actionable  if 
made  with  actual  malice  and  without  probable  cause,  and  cited  Lord  Camp- 
bell's opinion  to  the  same  effect  in  Dickson  v.  Earl  of  Wilton,  1  Fost.  &  Fin. 
419,  and  While  v.  Nicholh,  3  Howard  (U.  S.  Sup.  Ct.),  207. 

In  Respublica  v.  Sparhawk,  1  Dallas  (Penn.  Sup.  Ct.),  357,  it  was  held  that 
during  the  War  of  the  Revolution  Congress  had  a  right  to  direct  the  removal 
of  any  articles  that  were  necessary  to  the  Continental  army,  or  useful  to  the 
enemy  and  in  danger  of  falling  into  their  hands,  and  one  whose  property  so 
removed  was  afterwards  captured  by  the  enemy  was  not  entitled  to  compen- 
sation from  the  Commonwealth.  See  also  United  Slates  v.  Pacific  Railroad, 
120  United  States,  227:  Lamar  v.  Browne.  92  United  States,  187. 

In  Dow  v.  Johnson,  10  Otto,  158,  it  was  held  by  the  United  States  Supreme 
Court  that  no  action  would  lie  againsl  a  commanding  general  for  the  value  of 
personal  property  owned  by  a  citizen  of  New  York,  hut  situated  in  a  State  in 
rebellion,  and  seized  by  his  troops,  by  his  order,  during  the  late  Civil  War,  and 
used  for  the  army  of  the  United  States  govern  men t.  Justices  Clifford  and 
Miller  dissented,  on  the  ground  that  the  ultimate  court  was  without  juris- 
diction because  the  amount  involved  was  less  than  $5000,  and  obiter  expressed 
a  view  contrary  to  that  of  the  majority  on  the  merits.  Mr.  Justice  Miller 
praised  the  conduct  of  General  Jackson,  in  1815,  in  submitting  to  be  fined  by  a 
civil  court  for  contempt  in  violating  a  writ  of  habeas  corpus  during  the  siege 
of  New  Orleans  by  the  British,  calling  it  "  the  brightest  page  in  his  history." 


SECT.  V.  —  CASKS   OF    LOSS    WHERE    NO    RIGHT   OP    ACTION.       7    9 
No.  18.  —  Kennedy  v.  Broun.  —  Rule. 


No.  18.  — KENNEDY   v.   BROUN, 
(c.  P.  1863.) 

RULE. 

On  grounds  of  public  policy,  the  recovery  of  fees  payable 
to  a  barrister  cannot  be  enforced  by  action  ;  nor  will  an 
action  lie  on  an  account  stated  for  such  fees,  although  the 
service  has  been  performed  and  the  debt  admitted. 

Kennedy  v.  Broun. 

32  L.  J.  C.  137  (s.  c.  13  C.  B.  n.  s.  G77). 

Action  on  an  account  stated  with  the  female  defendant  dum  sola. 

Plea  (inter  alia},  never  indebted. 

At  the  trial,  before  Cockburn,  C.  J.,  at  the  Warwickshire  Spring 
Assizes,  1862,  the  facts  were,  that  the  female  defendant,  before  her 
marriage  with  Mr.  Broun,  had  been  the  widow  of  Henry  John 
Swinfen,  and  had  claimed  to  be  entitled  to  the  Swinfen  estates  in 
Staffordshire,  under  the  will  of  the  said  H.  J.  Swin fen's  father.  In 
a  suit  brought  by  the  heir-at-law  to  recover  these  estates,  the 
Court  of  Chancery  ordered  an  issue  to  try  the  validity  of  such  will ; 
which  issue  came  on  for  trial  at  the  Staffordshire  Spring  Assizes, 
1856,  when  the  claim  of  Mrs.  Swinfen  was  compromised  by  her 
counsel,  but  this  was  done  without  her  consent.  She  afterwards 
consulted  the  plaintiff,  a  barrister,  and,  acting  upon  his  advice,  she 
refused  to  carry  out  the  terms  of  the  compromise,  and  ultimately 
she  succeeded  in  getting  the  Court  of  Chancery  to  set  the  compro- 
mise aside,  and  to  order  a  fresh  trial  of  the  issue.  See  Swinfen  v. 
Swinfen,  18  Com.  B.  Rep.  485  ;  s.  c.  25  Law  J.  Rep.  (x.  s.)  C.  P. 
303  ;  and  in  Chanc.  2  De  Gex  &  J.  381  ;  s.  c.  27  Law  J.  Pep.  (N.  s.) 
Chanc.  35,  491.  The  second  trial  took  place  at  the  Staffordshire 
Summer  Assizes,  1858,  and  resulted  in  a  verdict  for  Airs.  Swinfen, 
which  was  afterwards  confirmed  by  the  Court  of  Chancery.  See 
Stoinfen  v.  Swwfen,  27  Beav.  148  ;  s.  c.  28  Law  J.  Rep.  (x.  s.) 
Chanc.  840.  On  the  occasion  of  all  the  proceedings  which  had 
occurred  since  the  compromise,  including  the  second  trial,  the 
plaintiff  acted  as  the  counsel  of  Mrs.  Swinfen,  and  had  the  entire 
conduct  of  her  case,  and  during  such  proceedings  she  made  repeated 


790  ACTION  (right  of). 


No.  18.  —  Kennedy  v.  Broun. 


requests  to  him  for  exertions  as  an  advocate,  and  repeatedly  prom- 
ised to  remunerate  him  amply  for  the  same ;  and  there  was  evi- 
dence that,  after  the  end  of  the  litigation  in  respect  of  the  Swinfere 
estates,  she  admitted  the  amount  of  debt  due  for  such  remuneration 
to  be  £20,000,  and  she  promised  the  plaintiff  to  pay  it.  There  was 
also  evidence  of  the  plaintiff  having  left  Birmingham,  where  lie 
had  a  practice  as  provincial  barrister,  in  order  to  devote  his  time  and 
attention  to  the  case  of  Mrs.  Svvinfen,  and  also  of  his  having  written 
and  printed  pamphlets  in  support  of  her  claim  to  the  estates,  and  in 
order  to  create  a  favourable  impression  in  the  neighbourhood. 

A  verdict  having  been  found  for  the  plaintiff  for  £20,000,  a  rule 
nisi  was  afterwards  obtained  for  the  defendants,  to  set  the  same 
aside,  and  enter  it  for  the  defendants,  pursuant  to  leave  reserved,, 
on  the  ground,  inter  alia,  that  the  account  relied  upon  was  of  a 
matter  in  respect  of  which  no  legal  liability  existed ;  or  for  a  new 
trial,  on  the  ground  of  misdirection,  and  of  the  verdict  being 
against  the  evidence. 

Cause  having  been  shown  by  the  plaintiff  in  person,  and  counsel 
heard  in  support  of  the  rule,  the  Court  took  time  for  consideration  ;. 
and,  on  a  subsequent  day,  11  January,  1863, 

Ekle,  C.  J.,  delivered  the  following  judgment  of  the  Court.  In  this 
case  the  defendants  obtained  a  rule  to  show  cause  why  the  verdict 
for  the  plaintiff  should  not  be  set  aside,  and  either  entered  for  the 
defendants  if  there  was  no  evidence  of  a  debt,  or  for  a  new  trial  if 
the  verdict  was  against  the  evidence.  The  material  facts  upon  the 
first  question  are,  that  in  the  course  of  the  suit  of  Swinfcn  v.  Swinfen 
(see  p.  789,  ante),  the  plaintiff,  a  barrister,  became  the  advocate  of 
the  present  defendant,  Mrs.  Broun  ;  and  during  the  continuance 
of  that  litigation  she  made  repeated  requests  to  him  for  exertions 
as  an  advocate,  and  repeatedly  promised  to  remunerate  him  for  the 
same  ;  and  after  the  end  of  the  litigation  she  spoke  of  the  amount  of 
this  remuneration,  and  for  the  purpose  of  the  present  judgment  we 
assume  that  she  admitted  the  amount  of  debt  due  for  such  remun- 
eration to  be  £20,000,  and  promised  to  pay  it.  These  facts  are  no- 
evidence  to  support  the  verdict  if  the  promise  of  the  defendant  did 
not  constitute  any  obligation ;  and  we  are  of  opinion  that  it  did 
not.  We  consider  that  a  promise  by  a  client  to  pay  money  to  a 
counsel  for  his  advocacy,  whether  made  before,  or  during,  or  after 
the  litigation,  has  no  binding  effect;  and  furthermore,  that  the 
relation  of  counsel  and  client  renders  the  parties  mutually  incapa 


SECT.  V.  —  CASES    OF   LOSS    WHERE   NO    RIGHT   OF    ACTION.       79 J 
No.  18.  —  Kennedy  v.  Broun. 


ble  of  making  any  legal  contract  of  hiring  and  service  concerning 
advocacy  in  litigation.  For  authority  in  support  of  these  propo- 
sitions, we  place  reliance  on  the  fact  that  in  all  the  records  of  our 
law,  from  the  earliest  time  till  now,  there  is  no  trace  whatever 
either  that  an  advocate  has  maintained  a  suit  against  his  client  for 
his  fees  in  litigation,  or  a  client  against  an  advocate  for  breach  of  a 
contract  to  advocate.  And  as  the  number  of  precedents  has  been 
immense,  the  force  of  the  negative  fact  is  proportionally  great.  To 
this  we  add  the  tradition  and  understanding  of  the  profession,  both 
as  known  to  living  memory  and  as  expressed  in  former  times.  Sir 
John  Davys.  Davys'  Rep.  Preface,  23,  declares  that  understanding 
at  the  beginning  of  the  seventeenth  century,  when  he  says  that  the 
fees  of  professors  of  the  law  are  not  duties  certain  growing  due  by 
contract  for  labour  or  service,  but  gifts  ;  not  merces,  but  honorarium. 
Sir  John  Davys  would  have  ample  experience  of  the  rules  of  the 
profession  from  his  eminence  in  the  law,  and  his  opinion  is  entitled 
to  much  weight.  Lord  Stowell,  as  appears  in  a  work  remarkable 
for  learned  research,  Wallace's  Reporters,  162,  3rd  ed.,  speaks  of  him 
as  a  poet,  a  lawyer,  and  a  statesman,  and  highly  distinguished  in 
each  of  these  characters.  Lord  Nottingham  declares  the  same 
understanding  of  the  profession  in  the  note  to  Co.  Lit.  295  a,  in 
saying  "  a  counsellor  cannot  bring  any  action  (id  est,  for  his  fees-), 
for  he  is  not  compellable  to  be  a  counsellor.  His  fee  is  honora- 
rium, and  not  a  debt."  The  same  note  contains  the  opinion  of  Mr. 
Butler  to  the  same  effect,  saying  that  in  England  the  fees  of  coun- 
sel are  honorary  in  the  strict  acceptation  of  the  word.  Blackstone 
also  (vol.  iii.  p.  28)  declares  the  same  understanding:  "A  counsel 
can  maintain  no  action  for  his  fees,  which  are  given  not  as  local io 
vel  conductio,  but  as  quiddam  honorarium  ;  not  as  salary  or  hire, 
but  as  a  mere  gratuity."  As  we  know  of  no  authorities  that  con- 
flict with  these,  we  only  add  the  names  of  the  Judges  who  have  had 
occasion  to  declare  an  opinion  to  the  same  effect,  and  they  are 
Lord  Hardwicke,  Lord  Kenyox,  Kixdersley,  V.C.,  Pigot,  C.B.  (Ire- 
land), and  Bayley,  J.,  and  Best,  J.  Thomhill  v.  Evans,  2  Atk. 
330  ;  Turner  v.  Phillips,  1  Peake,  166  ;  Re  May,  4  Jur.  N.  S.  1169  ; 
Hobart  v.  Butler,  9  Ir.  Com.  Law  Rep.  157 ;  Morris  v.  Hunt,  1  Chit. 
544.  These  are  authorities  for  holding  that  the  counsel  cannot  con- 
tract for  his  hire  in  litigation.  The  same  authorities  we  rely  on  to 
show  that  the  client  cannot  contract  for  the  service  of  the  counsel 
in  litigation.  There  is  the  same  absence  of  any  precedent  for  such 
an  action,  and  the  reason  for  the  one  incapacity  is  good  for  both. 


792  ACTION   (right  of). 


No.  18.  —  Kennedy  v.  Broun. 


We  proceed  to  the  authorities  on  which  the  plaintiff  relied  ;  and 
instead  of  examining  each  citation  separately,  we  think  it  more 
convenient  to  take  them  in  classes,  and  to  give  the  reason  why 
each  class  appears  to  us  to  have  no  weight.  The  proposition  is 
confined  to  incapacity  for  contracts  concerning  advocacy  in  litiga- 
tion. This  class  of  contracts  is  distinguished  from  other  classes 
on  account  of  the  privileges  and  responsibility  attached  to  such 
advocacy,  and  on  this  ground  we  consider  the  cases  unconnected 
with  such  advocacy  to  be  irrelevant.  Thus  the  barrister  who  con- 
tracted to  serve  as  returning-officer,  —  Egan  v.  Kensington  Union, 
3  Q.  B.  Rep.  935,  note,  — and  the  barristers  who  contracted  to  serve 
as  arbitrators,  —  Vicar y  v.  Warne,  4  Esp.  46  ;  Hoggins  v.  Gordon, 
3  Q.  B.  Rep.  46b' ;  s.  c.  11  Law  J.  Rep.  (n.  s.)  Q.  B.  286 ;  Marsack  v. 
Webber,  6  Hurl.  &  N.  5,  —  and  the  barristers  who  contracted  either 
for  an  annual  sum  by  way  of  retainer,  39  H.  6,  fo.  21,  pi.  31,  or  for 
an  annuity  pro  consilio  impenso  et  impendendo,  Plowd.  32, 160,  made 
contracts  not  concerning  litigation,  and  therefore  were  not  within 
the  incapacity  here  in  question.  It  may  be  that  a  contract  for  a 
general  retaining  fee  for  a  counsel  may  not  bind  at  the  present 
day,  because  it  relates  in  substance  to  litigation,  and  so  may  be 
distinguished  from  annuities  to  a  standing  counsel,  who  wTas  re- 
quired  to  guide,  by  his  advice,  in  the  management  of  property  and 
general  affairs.  The  change  in  the  habits  of  courts  and  the  practice 
of  the  bar,  since  the  last-mentioned  cases  were  decided,  has  proba- 
bly made  the  position  of  an  advocate  now  as  different  from  that 
of  standing  counsel  as  the  position  of  the  clergy  now  differs  from 
that  which  they  held  when  private  chaplains  were  hired  to  serve 
as  chaplains,  and  perform  other  work,  and  were  prosecuted  for 
breach  of  their  contracts  to  serve  under  the  statute  23  Edw.  III., 
relating  to  labourers  ;  in  one  of  which  prosecutions  against  a  paro- 
chial chaplain  for  breach  of  his  contract  to  serve  as  seneschal  and 
be  parochial  chaplain,  the  Court  of  Common  Pleas  thought  that,  as 
far  as  related  to  his  duty  as  chaplain,  lie  might  be  considered  to  be 
in  the  service  of  God,  and  therefore  not  within  a  statute  expressed 
to  relate  to  mowers  and  reapers  and  the  like,  but  hesitated  so  to 
decide  till  they  had  consulted  their  brethren  of  the  other  bench, 
and  had  their  sanction.  But  be  that  as  it  may,  fees  unconnected 
with  litigation  are  irrelevant  to  our  present  judgment,  and  this 
distinction  seems  to  be  taken  in  Mingay  v.  Hammond,  Cro.  Jac. 
482,  where  the  plaintiff  sued  for  an  annuity  pro  consilio,  and  the 


SECT.  V.  —  CASKS   OF   LOSS    WHERE    NO    RIGHT   OF   ACTION.       793 
No.  18. —  Kennedy  v.  Broun. 

defendant  pleaded  a  refusal  of  the  plaintiff  to  sign  a  bill  in  the  Star 
Chamber,  and  the  plea  was  held  bad,  because  a  counsellor  with 
such  a  fee  is  not  bound  to  put  his  hand  to  every  bill,  but  only  to 
give  counsel. 

With  respect  to  the  dicta  cited  by  Mr.  Kennedy,  relating  to  the 
liability  of  counsel  for  their  conduct  as  advocates,  they  are  all  con- 
sidered and  overruled  in  the  action  of  Swinfen  v.  Lord  Chelmsford, 
5  Hurl.  &  N.  919,  per  Pollock,  C.  B. ;  s.  c.  29  Law  J.  Rep.  (n.  s.) 
Exch.  382.  Some  relate  to  retainers  relating  to  purchases  of  land 
or  similar  services,  11  H.  6,  18,  pi.  10,  and  so  are  not  within  the 
incapacity  here  in  question.  And  although  the  dictum  of  P ASTON, 
C.  J.,  14  H.  6,  IS,  pi.  58,  "  that  action  lies  against  a  serjeant  who 
fails  to  attend  in  court,"  and  a  dictum,  by  Stokes,  counsel,  to  the 
same  effect  (Roll.  Abr.  tit.  Action  sur  Case  (P),  Disceit,  p.  91, 
pi.  ii.,  citing  20  H.  6,  fol.  34,  pi.  4,  relate  to  litigation),  yet  they  are 
mere  remarks  in  the  course  of  an  argument,  and  not  adjudications, 
and  they  were  expressly  overruled,  as  before  mentioned.  Mr.  Ken- 
nedy cited  Rastell's  Entries,  p.  2,  as  containing  precedents  for 
actions  against  an  attorney  or  counsel  for  not  appearing  in  court 
according  to  his  retainer  ;  but  the  book  contains  no  entry  against 
a  counsel  for  that  wrong.  There  are  three  entries  in  succession. 
The  first  is  against  an  attorney,  and  is  for  that  wrong.  The  second 
precedent  is  against  a  counsel  who  was  retained  to  advise  about 
the  purchase  of  a  manor,  and  betrayed  his  client's  secrets  and  in- 
terest, and  is  not  an  entry  which  relates  to  litigation.  And  the 
third  is  against  a  counsel,  but  it  is  for  a.  penalty  under  a  statute 
for  taking  retainers  on  both  sides  as  an  ambidexter.  The  citation 
from  Rastell,  therefore,  does  not  support  the  plaintiff's  argument. 
A  considerable  part  of  Mr.  Kennedy's  learned  research  consisted 
of  anecdotes  of  various  classes  relating  to  barristers,  irrelevant  to 
the  point  for  adjudication,  because  irrelevant  to  capacity  or  incapa- 
city for  contracting  for  advocacy.  Such  are  the  anecdotes  relating 
to  the  habits  of  barristers  when  they  held  communication  with 
their  clients  personally  before  the  rights  and  duties  of  attorneys 
and  solicitors  were  ascertained,  and  the  advocate  did  the  work  of 
each  branch  of  the  profession,  habits  which  continued  in  Jersey  till 
lately  —  see  Jersey  case,  13  Moore,  P.C.  203.  Such  also  are  those 
relating  to  alleged  endeavours  by  barristers  to  obtain  larger  fees. 
Whether,  this  has  been  done  or  not,  and  whether  a  communication 
in  respect  of  the  amount  of  the  fee  be  made  to  the  client  by  the 


794  ACTION  (right  of). 


No.  18.  —  Kennedy  v.  Broun. 


clerk  or  the  barrister,  the  nature  of  the  fee  is  not  altered,  nor  is 
the  right  to  sue  for  it  affected  thereby.  Such  also  are  those  re- 
lating to  payment  after,  instead  of  before,  the  service  is  performed. 
In  England,  the  general  usage  is  prepayment.  On  the  Continent, 
under  the  Roman  law  and  the  modern  French  law,  and  in  some 
exceptional  cases  in  England,  the  fee  is  paid  after  the  service. 
But  again,  the  nature  of  the  fee  is  not  altered  by  the  time  of  pay- 
ment. The  anecdotes  in  each  of  these  classes  show  that  the  pay- 
ments are  of  gratuities  and  not  of  debts,  and,  so  far  as  they  are  to 
be  noticed  for  adjudication,  tend  to  support  the  defendant's  case. 
As  to  express  contract,  certain  dicta  by  Picot,  C.B.,  —  Hobart  v. 
Butler, supra,  —  and  by  Pollock,  C.B.,  —  Swinfen  v.  Lord  Chelmsford, 
supra, —  were  cited  for  the  purpose  of  proving  that  a  barrister  had 
capacity  to  make  himself  liable  under  a  special  contract  with  his 
client  concerning  advocacy,  though  not  by  an  implied  contract. 
"We  think  that  the  effect  of  those  dicta  has  been  misunderstood. 
A  special  contract  differs  from  an  implied  contract  only  in  the 
mode  of  proof.  If  a  brief  marked  with  a  fee  for  a  given  place  of 
trial  is  left  in  silence,  there  would  be  some  evidence  of  an  implied 
contract  to  pay  the  fee,  were  there  no  usage  to  the  contrary,  and 
no  incapacity  for  such  a  contract.  If  the  same  brief  is  left  with 
an  express  contract  to  pay  the  fee,  there  would  be  an  express  con- 
tract, if  there  were  no  incapacity.  AVhere  the  service  of  the  bar- 
rister, according  to  usage,  is  for  a  gratuity,  that  usage  would  be 
presumed  to  continue,  unless  there  was  an  express  contract  rebut- 
ting that  presumption.  And  where  there  is  no  incapacity,  the 
presumption  from  usage  is  rebutted  by  an  express  contract.  Pol- 
lock, C.B.,  does  not  refer  to  any  authorities  ;  but  the  cases  referred 
to  by  Pigot,  C.  B.,  show  that  this  was  his  meaning,  fur  he  refers  to 
the  cases  above  mentioned,  where  barristers,  either  as  returning 
officers  or  as  arbitrators,  sustained  actions  on  express  contracts  for 
their  fees.  The  incapacity  depends  on  the  subject-matter  of  the 
contract,  not  on  the  mode  of  proof.  "When  the  contract  is  proved, 
its  incidents  are  the  same,  whatever  was  the  kind  of  evidence  ad- 
duced for  proof.  If  there  is  incapacity,  words  and  implication 
are  alike  nullities,  and  no  contract  can  result ;  but  where  there  is 
no  incapacity,  and  there  are  conflicting  presumptions  in  respect 
of  the  consensus  essential  to  create  contract,  there  evidence  of 
ex  press  words  of  clear  meaning  is  decisive  proof.  In  this  sense 
the  observation  of  Wood,  V.C., —  The  Attorneij-Genrrnl  v.  Tlie  Col- 


SECT.  V.  —  CASKS    OF   LOSS    WHERE    NO    RIGHT    OF    A.CTION.       795 
No.  18.  —  Kennedy  v.  Broun. 

lege  of  Physicians,  1  Jo.  &  II.  561  ;  s.  c.  30    Law  J.   Rep.  (N.  s.) 

(Jhanc.  757,  —  must  be  understood,  saying  "  that  a  physician 
might  recover  his  fee  if  he  makes  a  special  contract."  We  know 
of  no  incapacity  affecting  a  physician.  According  to  usage,  they 
practise  for  a  fee,  which  is  honorarium,  not  merces ;  and  no  action 
lies  where  the  parties  are  presumed  to  have  acted  according  to  this 
usage.  But  if  the  presumption  is  rebutted  by  evidence  of  an  ex- 
press contract,  such  contract  binds,  and  the  physician  may  sue  and 
be  sued  thereon,  as  was  held  in  Veitch  v.  Russell,  3  Q.  B.  (Ad.  &  El. 
N.  S.)  928  ;  s.  c.  12  Law  J.  Eep.  (x.  S.)  Q.  B.  13,  Mr.  Kennedy  argued 
that  under  the  civil  law  an  advocate  could  sue  for  his  fee,  and 
that  Blackstone  made  a  mistake  in  referring  thereto  to  support 
a  contrary  opinion.  In  this  it  appears  to  us  that  the  mistake 
is  on  the  part  of  the  plaintiff.  Throughout  the  whole  growth 
of  the  civil  law,  from  the  foundation  of  Rome  to  the  Digest 
-of  Justinian,  not  only  was  the  advocate  always  under  incapacity 
to  make  any  contract  for  his  remuneration,  but  also  throughout 
a  part  of  that  time  he  was  under  prohibition  from  receiving  any 
gain  for  his  services.  Whether  the  same  be  rfonum,  or  munus, 
or  honorarium,  is  immaterial ;  the  substance  of  the  law  was 
invariable.  He  never  could  contract  for  merces,  though  during 
part  of  the  time  he  might  lawfully  accept  a  donum.  In  the  be- 
ginning all  agree  that  the  patron  received  no  money  for  advocacy. 
Afterwards  he  took  gifts  to  an  excess,  and  was  restrained,  in  the 
year  550  a.  u.  c.  by  the  Lex  Cincia  de  donis  et  muneribus  >ic  quis  en  oh 
causam  orandam  caperet  If  gifts  were  prohibited,  a  fortiori  con- 
tracts for  payment  would  not  be  allowed.  This  prohibition  of  all 
gifts  for  advocacy  was  further  enforced  by  Augustus  in  732  a.  u.  c, 
commanding  advocates  to  plead  gratuitously,  and  for  breach  they 
were  ordered  to  refund  fourfold.  This  prohibition  against  all  gifts 
to  advocates  was  relaxed  in  a  time  of  great  debasement,  when,  ac-' 
cording  to  the  passage  in  Tacitus  referred  to  in  Blackstone  (Annal. 
lib.  xi.  c.  7),  non  quicquam  publicce  mercis  lam  venale  /nil  t/»'<m 
■advocator  a  in  perjidia.  The  Senate  sought  to  enforce  the  Cincian 
X,aw,  forbidding  all  gifts,  for  protection  against  abuses  on  the  part 
of  advocates.  Suilius,  an  advocate  of  singular  infamy,  offered  some 
of  the  arguments  which  have  been  urged  in  support  of  mercenary 
advocacy.  The  Emperor  took  an  intermediate  course,  and  by  a 
decree  fixed  the  maximum  which  an  advocate  might  lawfully  re- 
ceive by  way  of  gift  at  £80,  and  made  him  liable  t<»  refund  if  he 


'96  ACTION    (RIGHT    OF). 


No.  18.  —  Kennedy  v.  Broun. 


took  more.  The  words  of  Tacitus  are,  Claudius  "capiendis  pecuniis 
modum  statuit  ad  dena  sestertia  quern  egressi  repetundarum  tene- 
rentur."  The  Senate  made  a  further  effort  in  the  same  direction, 
passing  a  law  that  every  suitor,  before  he  took  any  step  in  the 
suit,  should  swear  that  he  had  neither  given,  nor  contracted  to 
give,  any  money  for  advocacy.  Pliny,  in  the  passage  referred  to 
by  Blackstone  (Epist.  lib.  v.  21),  writing  of  a  new  edict  by  a  prcetor 
to  enforce  practically  some  recent  laws,  says  sub  edicto  erat  senatus 
consult  am,  "  Hoc  omnes  qui  quid  negotii  haberent  priusquam 
agerent  jurare  jubebantur  nihil  se  ob  advocationem  cuiquam  dedisse, 
promisse,  cavisse.  His  enim  verbis  ac  mille  prseterea  et  venire 
advocationes  et  emi  vetabantur.  Peractis  tamen  negotiis  permitte- 
bat  pecuniam  duntaxat  decern  millia  dare."  Although  after  this 
time  gifts  within  the  limited  amount  were  lawful,  still  contracts 
with  advocates  during  litigation  are  not  shown  to  have  been  ever 
at  any  time  sanctioned  by  the  law  of  Rome.  Mr.  Kennedy  referred 
to  the  Digest,  lib.  50,  tit.  13,  Articles  10  and  12,  to  prove  that  an 
advocate  could  sue  for  his  fee  under  the  extraordinary  cognisance 
of  the  prseses  ;  but  we  do  not  find  that  these  articles  prove  his 
contention.  Article  10  seems  to  relate  to  a  suit  by  a  client  against 
an  advocate  to  make  him  refund  so  much  of  a  fee  already  paid  as 
exceeded  the  legitimate  amount,  and  gives  the  principle  for  esti- 
mating what  that  amount  should  be,  "  In  honorariis  advocatorum 
ita  versari  debet  judex  ut  pro  modo  litis  pro  advocati  facundia,  et 
fori  consuetudine  in  quo  acturus  erat  estimationem  adhibeat  dum- 
modo  licitum  honorarium  non  egrediatur ;"  and  the  article  con- 
cludes with  a  rescript  applicable  only  to  refunding  part  of  a  fee,  — 
"earn  duntaxat  pecuniam  quod  legitimum  egressa  est  repetere 
debet."  Article  12  relates  to  securities  and  bargains  for  fees,  and 
gives  the  rule  when  a  suit  can  be  maintained  thereon.  The  effect 
seems  to  be,  that  a  promise  while  the  litigation  is  pending  does  not 
bind,  but  that  a  security  given  after  the  cause  is  at  an  end  may  be 
enforced,  if  the  sum  secured,  together  with  the  sum  paid,  does  not 
exceed  the  legitimate  amount.  Article  12  is  this  :  "  Si  cui  cautuni 
est  honorarium  vel  si  quis  de  lite  pactus  est  videamus  an  petere 
possit  ?  Et  quidem  de  pactis  ita  rescriptum  est,  litis  causa  malo 
more  pecuniam  tibi  promissam  ipse  quoque  profiteris ;  sed  hoc  ita 
est :  si  suspensa  lite  societatem  futuri  emolumenti  cautio  pollicetur. 
Si  vero  post  causam  actam  cauta  est  honoraria  summa  peti  potei'it 
usque  ad  probabilem  quantitatem  etsi  nomine  palmarii  cautam  est, 
sic  tamen  ut  computetur  id  quod  datum  est  cum  eo  quod   debetur 


SECT.  V.  —  CASKS   OF   LOSS    WHERE   NO    RIGHT   OF   A.CTION.       797 
No.  18.  —  Kennedy  v.  Broun. 

neutruinque  compositum  licitam  quantitatem  excedat."  We  have 
now  to  consider  as  much  of  the  authorities  referred  to  as  seem  to 
be  relevant,  and  in  our  judgment  they  support  the  proposition  on 
Avhich  the  defendants  rely,  viz.,  that  the  relation  of  couusel  and 
client  in  litigation  creates  an  incapacity  t>>  contract  for  hiring  and 
service  as  an  advocate.  If  the  authorities  were  doubtful,and  it  was 
necessary  to  resort  to  principle,  the  same  proposition  appears  to  us 
to  be  founded  on  good  reason.  The  facts  of  the  present  case  fond- 
lily  show  some  of  the  evils  which  would  attend  both  on  the  advo- 
cate and  on  the  client  if  the  hiring  of  counsel  were  made  binding. 
In  this  case  the  advocate,  by  disclosing  words  of  intimate  confi- 
dence which  passed  in  moments  of  helpless  anxiety,  has  raised  the 
phantom  of  a  contract  for  a  sum  of  monstrous  amount;  and  of  this 
we  hope  we  may  say  that  there  is  no  one  in  the  profession  of  the 
plaintiff  who  would  be  willing  to  accept  from  him  this  verdict  for 
£20,000  as  a  gift.  In  the  present  case,  too,  if  the  client  compares 
the,  competence  and  peace  secured  for  her  by  her  former  advocate 
with  the  perils  and  the  miseries  of  wearisome  litigation  derived 
from  her  later  advocate,  the  contrast  may  suggest  to  her  that  gratu- 
ity is  preferable  to  contract  as  a  mode  of  remunerating  advocates. 
But  it  is  not  merely  on  such  considerations  as  these  that  this  law 
is  based.  The  incapacity  of  the  advocate  in  litigation  to  make  a 
contract  of  hiring  affects  the  integrity  and  dignity  of  advocates, 
and  so  is  in  close  relation  with  the  highest  of  human  interests, 
viz.,  the  administration  of  justice.  We  are  aware  that  in  the  class 
of  advocates,  as  in  every  other  numerous  class,  there  will  be  bad 
men  taking  the  wages  of  evil,  and  therewith  also  for  the  most  part 
the  early  blight  that  awaits  upon  the  servants  of  evil.  We  are 
aware  also  that  there  will  be  many  men  of  ordinary  powers  per- 
forming ordinary  duties  without  praise  or  blame;  but  the  advocate 
entitled  to  permanent  success  must  unite  high  powers  of  intellect 
with  high  principles  of  duty.  His  faculties  and  acquirements  are 
tested  by  a  ceaseless  competition  proportioned  to  the  prize  to  be 
gained,  that  is,  wealth  and  power  and  honour  without,  and  active 
exercise  for  the  best  gifts  of  mind  within.  He  is  trusted  with 
interests  and  privileges  and  powers,  almost  to  an  unlimited  degree. 
His  client  must  trust  to  him  at  times  for  fortune  and  character  and 
life.  The  law  trusts  him  with  a  privilege  in  respect  of  liberty  of 
speech  which  is  in  practice  bounded  only  by  his  own  sense  of  duty, 
and  he  may  have  to  speak  upon  subjects  concerning  the  deepest 
interests  of  social  life  and  the  innermost  feelings  of  the  human 


798  ACTION    (right  of). 


No.  18.  —  Kennedy  v.  Broun. 


soul.  The  law  also  trusts  him  with  a  power  of  insisting  on  an- 
swers to  the  most  painful  questioning,  and  this  power  again  is  ins 
practice  only  controlled  by  his  own  view  of  the  interests  of  truth. 
It  is  of  the  last  importance  that  the  sense  of  duty  should  be  in 
active  energy,  proportioned  to  the  magnitude  of  these  interests.. 
If  the  law  is  that  the  advocate  is  incapable  of  contracting  for  hire- 
to  serve,  when  he  lias  undertaken  an  advocacy,  his  words  and  acts- 
ought  to  be  guided  by  sense  of  duty  —  that  is  to  say,  duty  to  his 
client — binding  him  to  exert  every  faculty  and  privilege  and' 
power  in  order  that  he  may  maintain  that  client's  right,  together 
with  duty  to  the  court  and  himself  binding  him  to  guard  against; 
the  abuse  of  the  powers  and  privileges  intrusted  to  him,  by  a  con- 
stant recourse  to  his  own  sense  of  right.  If  an  advocate  with  these 
qualities  stands  by  the  client  in  time  of  his  utmost  need,  regard- 
less alike  of  popular  clamour  and  powerful  interest,  speaking  witln 
a  boldness  which  a  sense  of  duty  can  alone  recommend,  we  say 
the  service  of  such  an  advocate  is  beyond  all  price  to  the  client  - 
and  such  men  are  the  guarantees  to  communities  for  the  mainte- 
nance of  their  dearest  rights,  and  the  words  of  such  men  carry  a 
wholesome  spirit  to  all  who  are  influenced  by  them.  Such  is  the 
system  of  advocacy  intended  by  the  law,  requiring  the  remunera- 
tion to  be  by  gratuity ;  but,  if  the  law  wTere  to  allow  the  advocate 
to  make  a  contract  of  hiring  and  service,  it  might  be  that  his  mind 
wTould  be  lowered,  and  that  his  performance  would  be  guided  by 
the  words  of  his  contract  rather  than  by  principles  of  duty  ;  that 
words  sold  and  delivered  according  to  contract  for  the  purpose  of 
earning  hire,  would  fail  of  creating  sympathy  and  persuasion  in 
proportion  as  they  were  suggestive  of  effrontery  and  selfishness  ;:. 
and  that  the  standard  of  duty  throughout  the  whole  class  of  ad- 
vocates might  be  degraded.  It  may  also  well  be  that,  if  contracts- 
for  hire  could  be  made  by  advocates,  an  interest  in  litigation  might 
be  created  contrary  to  the  policy  of  the  law  against  maintenance,, 
and  the  rights  of  attorneys  might  be  materially  sacrificed,  and 
their  duties  be  imperfectly  performed  by  unscrupulous  advocates ; 
and  these  evils,  and  others  that  may  be  suggested,  would  be  un- 
redeemed by  a  single  benefit  that  we  can  perceive.  The  subject 
has  been  often  and  ably  discussed,  so  that  we  have  already  said 
more  than  sufficient.  We  would  only  add,  that,  in  the  growth  of 
the  English  law,  the  advocates  have  been  important  agents  in  es- 
tablishing the  liberty  of  thought  and  speech  and  action  which  has 
resulted  from  the  contests  in  courts  where  such  liberty  has  beeit 


SECT    V.  —  CASKS   OF  LOSS   WHERE   NO    RIGHT   OF   ACTION.       790 
No.  18.  —  Kennedy  v.  Broun. 

contended  for.  The  English  advocates  in  our  historical  trials  are 
entitled  to  be  gratefully  remembered,  and  it  must  not  be  forgotten 
that  their  minds  were  trained  in  the  practice  of  advocacy  without 
any  contract.  So  also  the  Roman  jurists  are  entitled  to  be  grate- 
fully remembered,  because  their  intuitive  sense  of  right  showed  to 
them  where  right  was  in  the  conflicts  of  interest  perpetually  aris- 
ing as  the  relations  of  man  to  man  multiplied,  and  their  words  have 
helped  to  guide  succeeding  generations  in  their  search  for  right 
when  similar  conflicts  arose.  And  it  must  not  be  forgotten  that 
throughout  the  Roman  system  it  was  held  that  an  advocate  and  a 
professor  of  law  would  be  degraded  by  a  contract  of  hiring,  and 
that  his  reward  was  to  be  gratuitous.  Mr.  Kennedy  has  cited  the 
Digest,  lib.  50,  tit.  13,  articles  10  and  12,  on  which  we  have  re- 
marked above.  The  title  relates  to  the  limits  of  the  extraordinaria 
cognitio  of  the  praises,  and  it  may  not  be  superfluous  to  add  article  5, 
expressly  excluding  therefrom  suits  by  the  class  of  professors  of 
law,  for  a  reason  applicable  by  all  advocates, —  "  Ne  juris  quidem 
civilis  professoribus  jus  est  quidem  res  sanctissima  civilis  sapient ia 
sed  quae  pretio  nummario  non  sit  estimanda  neque  dehonestanda, 
qusedam  tametsi  honeste  accipiuntur  inhoneste  tamen  petuntur." 
On  principle,  then,  as  well  as  on  authority,  we  think  that  there  is 
good  reason  for  holding  that  the  relation  of  advocate  and  client 
in  litigation  creates  the  incapacity  to  make  a  contract  of  hiring  as 
an  advocate.  It  follows  that  the  requests  and  promises  of  the 
defendant,  and  the  services  of  the  plaintiff,  created  neither  an  ob- 
ligation nor  an  inception  of  obligation,  nor  any  inchoate  right 
whatever  capable  of  being  completed  and  made  into  a  contract  by 
any  subsequent  promise.  By  reason  of  that  incapacity,  the  present 
case  is  distinguished  from  Lampleigh  v.  Brathwaite,  Hob.  105,  and 
the  cases  following  thereon.  In  all  of  them  the  defendant  was 
assumed  to  have  received  from  the  plaintiff  such  a  valuable  con- 
sideration as  would  have  made  a  valid  contract  if  a  promise  had 
been  made  before  the  consideration  had  passed.  Here  the  defendant, 
Mrs.  Broun,  received  nothing  from  the  plaintiff  which  was  capable 
of  forming  a  consideration  to  support  a  promise  at  whatever  time 
such  promise  may  have  been  made.  In  Lampleiyh  v.  Brathwaite, 
supra,  it  was  assumed  that  the  journeys  which  the  plaintiff  per- 
formed at  the  request  of  the  defendant,  and  the  other  services  he 
rendered,  would  have  been  sufficient  to  make  any  promise  binding 
if  it  had  been  connected  therewith  in  one  contract,  The  peculiar- 
ity of  the  decision  lies  in  connecting  a  subsequent  promise  with  a 


800  ACTION    (RIGHT   OF). 


No.  18.  —  Kennedy  v.  Broun. 


prior  consideration  after  it  had  been  executed.  Probably  at  the 
present  day  such  service  on  such  request  would  have  raised  a 
promise  by  implication  to  pay  what  it  was  worth,  and  the  subse- 
quent promise  of  a  sum  certain  would  have  been  evidence  for  the 
jury  to  fix  the  amount.  On  the  same  principle,  the  cases  cited  in 
sequel  to  Lampleigh  v.  Brathwaite,  supra,  are  also  distinguished. 
In  each  of  those  cases  the  defendant  had,  by  the  permission  of  the 
plaintiff,  received  value  belonging  to  the  plaintiff,  which  was  suffi- 
cient  to  support  any  promise.  As  to  one  class,  the  original  promise 
was  excluded  by  the  Statute  of  Frauds ;  but  a  subsequent  promise 
was  held  to  be  evidence  to  support  an  action  on  an  account  stated. 
Pinchon  v.  Ckilcott,  3  Car.  &  P.  236  ;  Sea  go  v.  Deane,  4  Bing.  459 ; 
Cocking  v.  Ward,  1  C.  B.  858.  As  to  another  class,  a  claim  in  equity 
to  money  was  converted  into  a  cause  of  action  at  law  by  an  express 
promise  to  pay  it  to  the  plaintiff.  Paper  v.  Hollo  nil,  3  Ad.  &  E.  99  ; 
s.  o.  4  Law  J.  Rep.  (n.  s.)  K.  B.  156  ;  Topham  v.  Morecraft,  8  El.  & 
Bl.  972;  More  v.  Hill,  '1  Peake  10.  For  these  reasons  we  think 
that  the  plaintiffs  case  is  not  within  the  principle  of  Lamplcigh 
v.  Brathwaite,  supra  ;  and  we  do  not  consider  it  to  be  our  duty 
to  extend  the  application  of  that  principle.  With  respect  to 
the  claim  for  compensation  for  leaving  Birmingham  and  coming 
to  London,  and  for  services  in  issuing  publications  for  the  purpose 
of  creating  a  prepossession  in  favour  of  the  defendant,  Mrs.  Broun, 
there  are  several  answers,  of  which  two  will  suffice.  The  first  is, 
that  these  services  were  ancillary  to  the  service  as  an  advocate ; 
and,  if  the  principal  service  could  not  be  the  subject  of  a  contract, 
neither  could  any  service  which  was  merely  accessory  thereto,  and 
of  no  value  without  the  principal.  The  second  is,  that  the  account 
i^  stated  of  the  total  of  the  claims  ;  and  if  any  one  of  the  claims 
of  undefined  amount  is  to  be  omitted,  the  statement  of  the  account 
is  disproved,  and  the  action  founded  upon  such  statement  of  ac- 
count  fails.  We  have  now  gone  through  the  whole  of  the  case, 
and  we  come  to  the  conclusion  that  the  plaintiff  has  not  established 
a  cause  of  action.  It  follows  that  the  rule  must  be  made  absolute 
to  enter  the  verdict  for  the  defendants.  If  the  judgment  on  this 
part  of  the  rule  should  be  reversed  in  a  court  of  error,  it  will  then 
become  our  duty  to  dispose  of  the  remaining  part  relating  to  a  new 
trial ;  and,  following  the  precedent  in  Betts  v.  Menzie,  28  Law  J. 
Rep.  (x.  s.)  Q.  B.  370,  we  order  the  part  of  the  rule  relating 
thereto  to  be  suspended  until  further  order. 

Rale  absolute  to  enter  the  verdict  for  the  defendants. 


SECT.  V.  —  CASES    OF    Loss    WHERE    NO    RIGHT    OF    ACTION.       SOl 
No.  18.  —  Kennedy  v.  Broun.  —  Notes. 


ENGLISH    NOTES. 

The  above  ease  has  been  .selected  as  the  one  in  which  the  legal  relation 
between  barrister  and  client,  in  England,  has  been  most  fully  argued 
and  considered.  The  case  is  the  converse  of  Swinfen  v.  Lord  Chelms- 
ford (C.  P.  1860),  oil.  &  X.  SUO;  29  L.  J.  Exch.  382.     The  plaintiff 

in  that  ease  (who  by  her  subsequently  married  name  of  Brown  was  de- 
fendant in  the  principal  case)  sued  her  counsel  for  damages  for  improp- 
erly and  without  authority  (as  she  alleged)  compromising  her  rights. 
The  whole  subject  of  the  relation  between  barrister  and  client  was  dis- 
cussed with  great  learning;  but  the  decision  was  rested  on  a  somewhat 
narrower  ground  than  the  judgment  in  the  principal  case.  The  Chief 
Baron  (Pollock),  however  (5  H.  &  jST.  924),  stated  his  own  view  of  the 
law  to  be  that  a  barrister,  acting  with  perfect  good  faith,  and  with  a 
single  view  to  the  interests  of  his  client,  is  not  responsible  for  any  mis- 
take or  indiscretion  or  error  of  judgment  of  any  sort.  This  view  has  been 
clearly  adopted  in  the  judgment  in  the  principal  case,  which  assumes, 
as  it  must  be  assumed,  that  the  right  to  sue  for  fees  on  the  one  side  and 
to  sue  for  breach  of  contract  on  the  other  side  must  be  reciprocal,  and 
stand  or  fall  together. 

The  principal  case  is  followed,  and  the  converse  rule  applied,  to  an 
action  against  a  barrister  for  breach  of  an  alleged  special  contract,  by 
the  Queen's  Bench  Division  in  Ireland,  in  Robertson  v.  Macdonough 
(1880),  6  L.  R,  Ir.  433. 

AMERICAN   NOTES. 

The  principal  case  is  cited  by  Mr.  Weeks  (Attorneys  at  Law,  p.  615),  but 
its  doctrine  does  not  prevail  in  this  country.  In  the  United  States  the  offices 
of  solicitors  and  barristers  are  united  in  one  person,  known  as  an  attorney  and 
counsellor,  and  lie  always  has  an  action  for  his  fees,  quantum  meruit  or  fixed 
by  agreement.  Wylie  v.  Coxe,  15  Howard  (U.  S.  Sup.  Ct.),  416;  Smith  v. 
Dacis,  45  New  Hampshire,  566 ;  Nichols  v.  Scott,  1-  Vermont,  47  ;  Clendinen 
v.  Black,  2  Bailey  (So.  Carolina),  488;  23  Am.  Dec.  140;  Miller  v.  Beal,  26 
Indiana,  2:51;  Webb  v.  Browning,  14  Missouri,  353;  55  Am.  Dec.  108  ;  Sandford 
v.  Ruckman,  24  Howard  Practice  (New  York),  521  ;  Sterens  v.  Monges,  1  Har- 
rington (Delaware),  127  ;  Van  Attn  v.  Mc Kinney,  16  New  Jersey  Law,  235'; 
Foster  v.  Jack,  4  Watts  (Penn.),  339;  Harland  v.  Lilienthal,  53  New  York, 
438;  Brackett  v.  Sears,  15  Michigan,  241 ;  Baird  v.  Ralcliff,  10  Texas,  si; 
Carter  v.  Bennett,  6  Florida,  214 ;  Rust  v.  Larue, A  Littell  (Kentucky),  11  J; 
14  Am.  Dec.  172;  Ames  v.  Gilman,  10  Metcalf  (Mass.),  239;  Neicman  v.  Wash- 
ington, Martin  &  Yerger  (Tennessee),  70.  In  Xew  Jersey,  counsel  fees  can- 
not be  recovered  without  showing  an  express  agreement  fixing  the  amount. 
Zabriskie  v.  Woodruff,  48  New  Jersey  Law,  610.  In  Harland  v.  Lilienthal,  "»:>> 
New  York,  438,  it  was  even  held  that  a  firm  of  attorneys,  properly  qualified 

VOL.   I.  —  51 


802  ACTION  (right  of). 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Rule. 

>,nd  practising,  may  recover  for  services  in  a  court  to  which  only  one  of  them 
tyas  admitted  to  practice.  And  an  attorney  may  recover  for  a  bare  retainer, 
without  any  service  under  it.  KnigJit  v.  Russ,  77  California,  410;  Blackman  v. 
Webb,  38  Kansas,  668.  But  contra:  McLellan  v.  Hayfurd,  72  Maine,  410;  :V.) 
Am.  Rep.  M'-i. 


No.   19.  —  THE   QUEEN   v.   LORDS   COMMISSIONERS 
OF   THE   TREASURY. 

(q.  b.  1872.) 

RULE. 

No  action  (whether  of  mandamus  or  otherwise)  lies  against 
the  servants  of  the  Crown,  —  e.  g.,  the  Lords  of  the  Treasury 
or  the  Postmaster-General,  —  nor  against  persons  in  their 
employ,  as  such  public  servants. 

The   Queen  v.   Lords   Commissioners   of  the  Treasury. 
41  L.  J.  Q.  B.   178  (s.  c.  L.  R.,  7  Q.  B.  387). 

Rule  calling  upon  the  Lords  Commissioners  of  Her  Majesty's 
Treasury  to  show  cause  why  a  manda7nus  should  not  issue  directed 
to  them,  commanding  them  to  issue  a  Treasury  minute  or  authority 
to  the  paymaster  of  civil  contingences,  or  other  proper  officer, 
directing  and  authorising  him  to  pay,  or  cause  to  be  paid,  to  the 
treasurer  of  the  county  palatine  of  Lancaster,  sums  specified  and 
claimed  in  the  affidavits  upon  which  the  rule  was  obtained. 

It  appeared  from  the  affidavits  that  during  the  half  year  ending 
the  31st  of  December,  1870,  the  costs  of  all  prosecutions  in  the" 
county  were,  upon  the  charges  made  by  the  respective  prosecutors 
in  their  bills  of  costs,  duly  taxed  by  the  proper  officers  in  the 
county,  and  under  the  direction  of  the  courts  before  which  the 
respective  cases  were  tried.  Orders  in  the  usual  form  for  the  pay- 
ment of  sums  expended  for  these  prosecutions  at  assizes  and 
quarter  sessions,  including  adjudications  under  the  Criminal  Justice 
and  the  Juvenile  Offenders  Acts,  were  duly  presented  to  the  county 
treasurer,  having  first  been  taxed  by  the  proper  officers,  and  he  paid 
the  amounts  directed  by  the  orders  out  of  the  county  rates.  The 
accounts  of  these  payments,  with  all  vouchers  relating  thereto, 
were  transmitted  to  the  Lords  of  the  Treasury.  A  number  of 
items  in  these  bills,  amounting  altogether  to  <£100,  were  taxed 


SECT.  V.  —  CASKS   OF   LOSS    WHERE    N<>    BIGHT   OF    ACTION.       803 
No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury. 

off,  and  disallowed  by  the  Board  of  Examiners  of  Criminal  Law 
Accounts.  It  was  stated  that  the  amount  granted  by  the  Appro- 
priation Act,  1870,  34  &  35  Vict.  c.  89,  schedule  B,  part  7,  to 
defray  the  charges  for  prosecutions  formerly  paid  out  of  the  county 
rates,  and  for  other  like  charges,  had  not  been  entirely  expended. 

The  Appropriation  Act,  34  &  35  Vict.  c.  89,  by  section  3,  pro- 
vides that  "all  sums  granted  by  this  Act,  and  the  other  Acts 
mentioned  in  schedule  (A)  annexed  to  this  Act,  out  of  the  Con- 
solidated Fund  towards  making  good  the  supply  granted  to  Her  Ma- 
jesty, amounting,  as  appears  by  the  schedule,  in  the  aggregate, 
to  £45,006,516  9,s\  lid.,  are  appropriated,  and  shall  be  deemed  to 
have  been  appropriated  as  from  the  date  of  the  passing  of  the  first 
of  the  Acts  mentioned  in  the  schedule  (A),  for  the  purposes  and 
services  expressed  in  schedule  (B),  annexed  hereto."  By  schedule 
(B),  part  7,  "Civil  Services  :  Class  III.  Schedule  of  sums  granted 
to  defray  the  charges  of  the  several  civil  services  herein  particu- 
larly mentioned,  which  will  come  in  course  of  payment  during  the 
year  ending  on  the  31st  of  March,  1872  ;  .  .  .  2.  For  prose- 
cutions at  assizes  and  quarter  sessions  in  England,  formerly  paid 
Dut  of  county  rates,  including  adjudications  under  the  Criminal 
Justice  and  the  Juvenile  Offenders  Acts,  sheriffs'  expenses,  sala- 
ries to  clerks  of  assize,  and  other  officers,  and  for  compensation  to 
clerks  of  the  peace  under  the  Criminal  Justice  Acts,  and  other 
expenses  of  the  same  class,  £201,173." 

By  29  &  30  Vict.  c.  39  §  14,  "  when  any  sum  or  sums  of  money 
shall  have  been  granted  to  Her  Majesty  by  a  resolution  of  the 
House  of  Commons,  or  by  an  act  of  Parliament,  to  defray  expenses 
for  any  specified  public  services,  it  shall  be  lawful  for  Her  Majesty, 
from  time  to  time,  by  her  royal  order  under  the  royal  sign  manual, 
countersigned  by  the  Treasury,  to  authorise  and  require  the  Treasury 
to  issue  out  of  the  credits  to  be  granted  to  them  on  the  exchequer 
accounts,  as  hereinafter  provided,  the  sums  which  may  be  required 
from  time  to  time  to  defray  such  expenses  not  exceeding  the 
amount  of  the  sums  so  voted  or  granted." 

It  appeared  that  before  1836,  under  7  Geo.  IV.  c.  64,  the  costs  of 
criminal  prosecutions  were  paid  out  of  the  county  fund.  In  1836, 
the  Treasury,  in  pursuance  of  a  resolution  of  the  House  of  Com- 
mons, began  to  repay  to  each  county  out  of  the  consolidated  fund 
half  the  cost  of  these  prosecutions.  In  1847,  and  subsequently, 
the  House  of  Commons  in  supply  have  voted  a  sum  sufficient  to 


804  ACTION   (right  of). 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury. 


defray  the  expense  of  these  prosecutions,  and  a  sum  is  annually 
appropriated  for  the  purpose  in  the  Appropriation  Acts. 

The  Solicitor-General  (Sir  G.  Jessel),  J.  Brown,  and  Archibald 
showed  cause  against  the  rule.  The  court  has  no  power  to  issue  a 
mandamus  to  the  Lords  of  the  Treasury  as  Ministers  of  the  Crown. 
If  the  Lords  of  the  Treasury  had  been  constituted  by  the  legislature 
bare  trustees  to  do  a  certain  act,  but  not  as  ministers  of  the  Crown, 
a  mandamus  might  go;  but  neither  this  court  nor  any  other  court 
of  justice  has  any  power  to  interfere  with  them  in  the  performance 
of  their  duties  as  ministers  of  the  Crown.  According  to  the  terms  of 
the  rule,  they  are  ordered  to  show  cause  why  they  should  not 
make  a  Treasury  minute,  but  there  is  no  act  of  Parliament 
which  requires  them  to  make  a  Treasury  minute. 

[Cockburn,  C.  J.  The  making  a  Treasury  minute  is  merely 
mentioned  as  a  means  to  the  end.] 

Even  so;  this  court  cannot  issue  the  mandamus  to  them.  There 
are  only  two  statutes  —  namely,  34  &  35  Vict.  c.  89  and  29  &  30 
Vict.  c.  39  —  under  which  the  alleged  duty  can  be  said  to  be  cast 
upon  them.  The  county  has  paid  the  expenses  incurred,  and  there 
is  no  statute  except  the  Appropriation  Act,  34  &  35  Vict.  c.  89,  to 
compel  the  Lords  of  the  Treasury  to  make  the  allowances  to  the 
county.  It  is  quite  clear  that  they  have  a  discretion  to  determine 
what  amounts  shall  be  allowed,  and  such  discretion  cannot  be  con- 
trolled by  mandamus.  The  statute  was  passed  with  the  view  of 
preventing  the  servants  of  the  Crown  from  appropriating  to  one 
purpose  the  money  which  was  intended  for  another,  but  not  with 
the  view  of  giving  a  third  person  a  right  to  the  money.  Before 
the  Appropriation  Acts  were  passed  by  the  legislature,  the  practice 
was  to  vote  money  for  particular  purposes.  The  word  "appro- 
priated" in  the  Appropriation  Act  means  appropriated  as  between 
the  Crown  and  the  House  of  Commons,  and  refers  to  the  sum  of 
money  applicable  to  the  particular  purpose,  not  expressing  that  it 
shall  be  laid  out  on  the  particular  purpose.  The  4th  section  shows 
that  the  Commissioners  of  the  Treasury  have  a  discretion  to 
authorise  the  departments  intrusted  with  the  control  over  the 
naval  and  military  services  to  defray  expenditure  not  provided  for 
in  the  sums  appropriated  to  such  services  out  of  any  surpluses 
which  may  have  been  or  which  may  be  effected  by  the  saving  of 
expenditure  upon  votes  within  the  same  department. 

[Mellor,  J.     In  schedule  (B),  part  7,  the  sum  of  £201,173  is 


SECT.  V. —  CASES    OF    LOSS   WHERE   NO   RIGHT   OF    ACTION'.       805 
No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury. 

appropriated   for  prosecutions  at   assizes  and  quarter  sessions  in 
England,  formerly  paid  out  of  county  rates,  including  some  other 

expenses] 

The  Lords  of  the  Treasury  have  a  discretion  in  allowing  the 
expenses  under  those  heads;  but  further,  if  any  obligation  is 
imposed,  it  is  upon  the  Crown.  If  the  money  gets  into  the  hands 
of  the  Lords  of  the  Treasury,  it  is  simply  because  they  are  servants 
of  the  Crown.  If  the  court  was  to  grant  a  mandamus  in  the 
present  case,  it  might  he  called  upon  to  do  so  upon  the  application 
of  any  sailor  in  the  fleet,  or  of  the  housekeeper  at  the  Admiralty 
Office,  if  wages  were  not  paid  in  full.  See  schedule  B,  part  3. 
The  discretion  is  inherent  in  the  Lords  of  the  Treasury  to  say 
whether  they  will  allow  these  costs  now  or  at  any  other  time. 
They  may  find  that  it  is  necessary  for  the  public  service  that  some 
other  sums  should  be  paid  first.  This  court  cannot  look  into  the 
Treasury  accounts.  The  sum  appropriated  is  a  limited  sum,  and 
the  year  is  not  ended.  The  first  of  the  cases  bearing  upon  the 
subject  is  The  King  v.  The  Lords  Commissioners  of  the  Treasury, 
4  Ad.  &  E.  286 ;  s.  c.  5  Law  J.  Rep.  (n.  s.)  K.  B.  20,  where  a  man- 
damus was  granted  by  this  court,  ordering  the  payment  of  a  retir- 
ing allowance ;  but  there  was,  in  that  case,  an  appropriation  of  a 
gross  sum  to  be  applied  in  discharge  of  retiring  allowances,  and 
the  Lords  of  the  Treasury  had  informed  the  applicant  that  he  might 
receive  the  exact  amount,  thus  admitting  they  had  it  in  their 
hands  for  that  very  purpose.  Further,  when  that  case  was  decided, 
the  statute  4  &  5  Will.  IV.  c.  15  was  in  operation,  which  was  said 
by  section  13  to  give  jurisdiction  to  this  court;  and  although  that 
proposition  was  disputed  by  the  Treasury,  it  was  thought  better 
that  it  should  be  repealed.  This  was  done,  with  the  exceptions 
of  sections  7  and  26.  See  29  &  30  Vict.  c.  39  §  46.  It  is  sub- 
mitted that  that  case  is  no  authority  in  support  of  the  present 
application,  there  having  been  a  specific  duty  cast  upon  the  Lords 
of  the  Treasury  to  parcel  out,  among  the  recipients,  the  sum 
granted,  and  to  carry  over  the  specific  sum  allowed  to  the  appli- 
cant. It  was  decided  in  the  case  of  In  re  the  Bnrov  de  Bode,  li 
Dowl.  P.  C.  776,  that  a  mandamus  does  not  lie  to  the  Crown  or  to 
the  servants  of  the  Crown  commanding  them  to  pay  over  money  in 
its  or  their  possession  in  liquidation  of  claims  on  the  Crown. 
Coleridge,  J.,  said,  "In  the  second  place,  in  what  capacity  do  the 
Lords  of  the  Treasury  hold  this  fund  ?     Most  clearly  as  the  mere 


806  ACTION  (right  of). 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury 

servants  of  the  Crown.  .By  the  exercise  of  the  royal  functions,  the 
money  was  first  obtained.  The  present  claim  has  been  properly 
admitted  to  be  beside  the  parliamentary  appropriation  of  any  part 
of  it,  and  the  residue  has  now  reverted  to  the.Crown,  and  is  in  the 
hands  of  the  Crown  by  its  servants.  But  against  the  servants  of 
the  Crown,  as  such,  and  merely  to  enforce  the  satisfaction  of  claims 
upon  the  Crown,  it  is  an  established  rule  that  a  mandamus  will 
not  lie.  I  call  this  an  established  rule,  and  I  believe  it  has  never 
been  broken  in  upon.  There  are  circumstances,  indeed,  under 
which  a  mandamus  will  lie  against  the  Lords  of  the  Treasury,  and 
a  much  misunderstood  instance  is  the  case  of  The  King  v.  The 
Lords  of  the  Treasury,  supra.  There  it  appeared  prima*  facie 
that  a  pension  had  been  granted  ;  that  funds  applicable  to  its  pay- 
ment had  been  placed  by  Parliament  in  the  hands  of  the  Lords  of 
the  Treasury,  as  public  officers  charged  by  statute  with  the  pay- 
ment of  such  pensions ;  that  the  Lords  had  allotted  the  fund  for 
the  payment,  and  acknowledged  to  the  claimant  that  they  held  it 
for  his  use,  and  that  they  only  refused  to  pay  because  he  declined 
to  take  it  clogged  with  the  conditions  which  they  had  no  right  to 
impose.  These  were  the  facts  on  which  the  court  directed  the 
mandamus  to  go,  and  no  answer  was  given  to  them  ;  but,  in  so 
deciding,  the  court  did  not  implicitly  infringe  upon,  and  they 
expressly  affirmed,  the  doctrine  that  a  mandamus  will  not  lie 
against  the  Crown  or  its  servants  as  such.  It  is  only  necessary  to 
refer  to  the  cases  which  are  to  be  found  in  the  same  volume  with 
The  King  v.  The  Lords  of  the  Treasury,  supra  ;  in  re  Hand, 
4  Ad.  &  E  984 ;  In  re  Smith,  ibid.  976 ;  s.  c.  5  Law  J.  Rep.  (n.  s.) 
K.  B.  20 ;  and  Ex  parte  Ricketts,  ibid.  999,  decided  in  strict  con- 
formity with  the  former  case,  but  upon  the  distinction  before 
adverted  to,  to  perceive  that  the  doctrine  of  the  Crown's  exemption 
from  a  mandamus,  and  of  the  Crown's  servants  equally,  has  not 
been  brought  into  question  by  the  Court  of  Queen's  Bench  in 
modern  times.  I  have  neither  the  power  nor  the  inclination  to 
shake  it."  The  cases  referred  to  fully  support  the  proposition  so 
laid  down.  In  The  Queen  v.  The  Lords  Commissioners  of  the 
Treasury,  16  Q.  B.  Rep.  305  ;  s.  c.  20  Law  J.  Rep.  (n.  s.)  Q.  B. 
357,  the  mandamus  was  granted,  but  it  was  with  the  consent  of 
the  Crown,  and  upon  the  repealed  statute,  4  &  5  Will.  IV.  c.  15 
§  13.  In  Ex  parte  Napier,  18  Q.  B.  Rep.  701  ;  S.  C.  21  Law  J. 
Rep.  (n.  8.)  Q.  B.  332,  Lord  Campbell,  C.  J.,  said, "  Reliance  is  then 


SECT.  V.  —  CASES   OF   LOSS    WHERE    NO    RIGHT    OF    ACTION.       807 
No.  19. --The  Queen  v.  Lords  Commissioners  of  the  Treasury. 

placed  on  the  case  of  The  King  v.  The  Lords  of  the  Treasury, 
supra,  in  which  this  court  granted  a  mandamus  to  the  Lords  of  tin' 
Treasury  to  pay  to  Mr.  Carinichael  Smyth  the  arrears  of  a  pension 
granted  by  the  Crown  fur  services;  but  (as  has  been  repeatedly 
explained)  this  decision  went  entirely  on  the  ground  that  the 
Lords  of  the  Treasury  had  admitted  that  they  had  in  their  hands 
the  sum  of  money  in  question,  and  that  they  had  appropriated  it 
to  his  use."  In  Ellis  v.  Earl  Grey,  6  Sim.  214,  an  injunction  was 
granted  to  restrain  the  Lords  of  the  Treasury  from  paying  the  com- 
pensation awarded,  under  11  Geo.  IV.  and  1  Will.  IV.  c.  58,  for 
the  office  of  side  clerk  in  the  Exchequer,  which  had  been  abolished; 
but  Siiadwell,  A'.  C.j  said  the  money  was  "  to  pass  through  the 
hands  of  the  Lords  of  the  Treasury,  who  are  to  be  the  mere  minis- 
terial conduit-pipes  for  payment  of  it  to  the  parties  entitled." 

They  also  cited  The  Banker's  Case,  14  How.  St.  Tr.  67;  Gidley  v. 
Lord  Palmerston,3  15.  &  15.  275;  The  Queen  v.  The  Commissioners 
of  Woods  and  Forests,  15  Q.  15.  Rep.  761  ;  s.  c.  19  Law  J.  Rep. 
vx.  s.)  Q.  B.  497;  Brashear  v.  Mason,  6  How.  (American)  Eep.  92; 
Decatur  v.  Paulding,  14  Peters  (American)  Rep.  497. 

Manisty  and  Gorst,  in  support  of  the  rule.  It  must  be  as- 
sumed that  there  are  funds  in  the  management  of  the  Lords  of 
the  Treasury  sufficient  to  satisfy  all  these  demands.  No  remedy 
except  mandamus  exists,  by  which  the  justices  can  recover  from 
the  Treasury  the  costs  disallowed  by  the  examiners.  By  7  Geo. 
IV.  c.  64,  the  expenses  of  prosecutions  were  to  be  regulated  In- 
justices at  quarter  sessions.  In  the  Appropriation  Act,  1835  (5  $ 
6  Will.  IV.  c.  80),  §  17,  there  is  an  allowance  "  for  charges  hitherto 
paid  out  of  county  rates  for  1835."  This  amount  was  granted  for 
the  purpose  of  discharging  by  the  country  half  of  the  costs  incurred 
by  the  several  counties.  In  the  year  1846,  the  grant  by  the 
Appropriation  Act  (9  &  10  Vict.  c.  116)  was  for  "charges  formerly 
paid  out  of  county  rates."  The  King  v.  The  Lords  of  the  Treasury,, 
supra,  shows  that  under  4  &  5  Will.  IV.-  c.  15  §  13,  a  manrtarryup 
will  lie.  It  will  lie  said  that  this  section  is  repealed,  but  the 
words  of  the  repealing  Act,  2!)  &  30  Vict,  c.  39  §  14,  are  similar. 
Sections  13  &  15  show  that  the  money  is  specifically  appropri- 
ated in  the  hands  of  the  Treasury,  and  they  are  then  like  bankers, 
who  have  acknowledged  that  they  hold  money  for  a  particular 
purpose.      Their    duty  to  apply   the    money  will  be   enforced   by 


808  ACTION  (right  of). 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury. 

mandamus.  The  Queen  Dowager's  Case,  16  Q.  B.  Rep.  357;  s.  c. 
20  Law  J.  Eep.  (n.  s.)  Q.  B.  305,  per  Lord  Campbell. 

Cockburn,  C.  J.  This  is  a  case  in  which,  if  we  had  jurisdic- 
tion to  issue  a  writ  of  mandamus,  I  should  have  no  hesitation  in 
the  world  in  saying  that  it  ought  to  go.  Nothing  can  he  more 
anomalous  or  unsatisfactory  than  the  present  system  with  regard 
to  the  taxation  of  these  costs.  Every  one  will  agree  in  saying 
that  the  expenses  of  prosecuting  offenders  ought  to  he  defrayed 
out  of  the  public  purse.  It  is  essential  to  the  effective  adminis- 
tration of  criminal  justice  that  the  expenses  of  prosecutions 
should  not  fall  upon  those  who  come  forward  to  complain  of 
injuries  which  they  have  received,  and  which  affect  the  public  as 
well  as  the  individuals  who  suffer ;  for  experience  has  shown  that 
they  are  unwilling  to  prosecute  if  the  expense  is  to  fall  upon  them. 
Under  the  old  system  these  costs  were  defrayed  out  of  the  rates 
of  the  counties  or  other  districts  having  a  criminal  jurisdiction  of 
their  own,  the  costs  being  of  course  taxed  by  proper  officers  ap- 
pointed for  the  purpose.  But  as  far  back  as  1836  this  system  was 
to  some  extent  altered,  and  the  costs  which  up  to  that  time  had 
been  thrown  upon  the  county  were  in  fact  transferred  to  the  public 
funds  of  the  country,  and  by  a  still  later  arrangement  the  whole 
of  these  costs  were  thrown  upon  the  public  revenue.  The  sys- 
tem of  taxation  which  had  hitherto  been  found  satisfactory  was 
continued,  and  the  same  officers  who  had  taxed  at  the  assizes  and 
quarter  sessions  continued  to  tax  as  before.  The  whole  of  the 
expenses  had  to  be  defrayed  out  of  the  count}7  or  borough  rates, 
but  by  the  new  system  the  amount  so  paid  was  to  be  refunded  to 
the  treasurer  of  the  county  or  borough  fund. 

Now,  the  Lords  Commissioners  of  the  Treasury  have  thought 
proper  to  introduce  this  addition,  or,  as  it  appears  to  me,  excres- 
cence upon  the  previous  system.  They  have  taken  upon  them- 
selves, it  is  now  said  for  a  period  of  fourteen  years,  to  review  the 
taxation  of  the  proper  taxing  officers.  I  am  far  from  saying  that 
the  taxation  of  the  costs  of  prosecutions  ought  not  to  be  rigorously 
supervised,  for  it  would  be  a  monstrous  abuse  if  prosecutors  were 
allowed  to  extort  from  the  public  purse  more  than  they  had  prop- 
erly and  legitimately  expended.  But  it  is  a  very  different  thing 
to  direct,  instead  of  a  taxation  on  the  spot  where  the  circumstances 
attending  the  prosecution  are  known,  and  where  the  Court  of 
Assize  <»r  Quarter  Sessions  may  be  appealed  to  in  case  of  dispute, 


SECT.  V.  — CASES    OF   LOSS    WHERE    NO    RIGHT    OF    ACTION.       S00 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury. 

that  after  the  matter  has  been  investigated  by  the  proper  officer, 
two  gentlemen  sitting  in  London,  by  the  sole  authority  of  the  Lords 
of  the  Treasury,  should  review  the  taxation,  and  strike  off  v\  liatever, 
in  the  exercise  of  their  discretion,  they  think  proper  to  disallow. 
They  cannot  have  the  same  knowledge  as  the  regular  offici  is.  and  I 
am  at  a  loss  to  conceive  by  what  supposed  authority  they  are  required 
to  tax  again,  and  disallow  items  in  the  bills  of  the  regular  officers. 
The  inconvenience  of  such  a  course  is,  I  think,  palpable.  Tli  •  gen- 
tlemen appointed  by  the  Treasury  will  naturally,  to  show  the  use- 
fulness of  their  office,  be  disposed  to  strike  off  items  wherever 
they  have  an  opportunity  of  doing  so,  although  they  have  not  the 
same  means  of  forming  a  correct  judgment  as  those  who  are  upon 
the  spot.  But  it  is  another  thing  to  say  that  we  have  jurisdiction. 
It  is  not  because  this  may  be  an  unsatisfactory  state  of  things 
with  regard  to  the  taxation  of  costs  in  prosecutions,  and  that  even 
in  the  case  of  the  county  or  borough  who  have  paid  the  costs 
allowed  by  the  taxing  master,  there  is  no. remedy  except  that  of 
applying  by  petition  to  the  Crown  or  to  Parliament.  — a  remedy 
which  may  be  a  fruitless  or  abortive  one,  —  that  this  court  has  juris- 
diction to  issue  a  writ  of  mandamus.  I  take  it  with  reference  to 
that  jurisdiction  that  we  must  start  with  the  unquestionable  princi- 
ple, that  where  a  duty  wras  to  be  performed  (if  I  may  use  the  expres- 
sion) by  the  Crown,  this  court  cannot  affect  to  have  any  power 
to  command  the  Crown.  We  have  no  power  over  the  Sovereign. 
In  like  manner,  where  the  parties  are  acting  as  servants  of  the 
Crown,  they  are  not  amenable  to  us  in  the  exercise  of  our  preroga- 
tive jurisdiction. 

It  comes,  therefore,  to  this:  Are  the  Lords  Commissioners  of  the 
Treasury,  when  this  money  gets  into  their  hands,  bound  to  apply 
it  as  the  servants  of  the  Crown  or  as  the  servants  of  Parliament, 
who  votes  the  money  ?  Independently  of  authority,  1  think  there  is 
no  doubt  whatever  that  we  must  look  upon  them  as  servants  of  the 
Crown.  The  money  is  voted  by  Parliament  as  a  supply  to  the 
Crown,  and  ways  and  means  are  found  with  the  view  of  making 
this  supply  effectual.  It  is  true  that  the  money  is  appropriated  to 
a  specific  purpose,  and  that  it  can  only  be  appropriated  to  the 
purpose  so  specified  in  the  Appropriation  Acts.  It  is  also  tin  i 
that  the  particular  mode  of  obtaining  the  money  is  prescribed  by 
statute.  It  is  not  a  supply  to  be  at  once  handed  over  to-  the 
Crown,  but  it  is  to  be  got  at  by  a  certain  ascertained  and  specified 


810  ACTION    (RIGHT   OF). 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury. 

process,  and  the  Crown  must  issue  warrants  or  orders  under  its 
sign-manual  to  enable  the  Lords  Commissioners  of  the  Treasury 
to  have  this  money  paid  to  them.  But  nevertheless,  when  the 
money  is  paid,  I  can  entertain  no  doubt  that  it  is  paid  to  the 
Treasury,  as  the  servants  of  the  Crown ;  and  though  I  quite  agree 
that,  according  to  the  Appropriation  Act,  they  were  bound  to 
apply  the  money  upon  the  vouchers  being  produced,  and  had  no 
authority  to  re-tax  these  bills,  still  I  cannot  say  that  there  is  any 
duty  which  makes  it  incumbent  to  do  what  I  cannot  but  say  that 
they  ought  to  have  done,  except  as  servants  of  the  Crown,  because 
they  have  received  the  money  in  that  character  and  in  no  other. 
It  is  true  that  we  have  been  pressed  with  the  authority  of  the  case 
of  The  King  v.  The  Lords  Commissioners  of  the  Treasury,  supra, 
but  I  think  that  is  a  case  of  very  doubtful  authority.  It  rests, 
after  all,  as  was  subsequently  said  in  this  Court,  upon  a  particular 
clause  in  the  then  existing  statute  of  4  &  5  Will.  IV.  c.  15  §  13, 
and  I  doubt  very  much  whether  the  section  upon  which  the  decree 
was  supposed  to  rest  would  really  support  it  ;  but  at  any  rate  that 
statute  has  been  repealed.  Then,  with  regard  to  the  statute  to 
which  Mr.  Gorst  ingeniously  called  our  attention,  with  the  view 
of  fortifying  the  case  for  the  appellants,  I  cannot  see  anything  in 
that  statute  which  imposes  a  duty  at  law  upon  the  Treasury.  It 
may  be  a  duty  which  they  owe  to  the  Crown  or  to  Parliament  to  ap- 
ply this  money  in  discharge  of  the  accounts  which  the  counties  are 
compelled  without  any  choice  on  their  part  to  pay,  but  it  is  not 
a  duty  which  can  be  enforced  by  any  legal  proceeding  or  by  the 
prerogative  jurisdiction  of  this  court.  I  think,  therefore,  that  we 
must  discharge  this  rule. 

Blackburn,  J.  I  am  of  the  same  opinion.  1  think  that  if  we 
had  the  power  to  grant  a  mandamus  to  compel  the  payment  of  this 
money,  it  would  be  right  to  order  the  Treasury  to  pay  it ;  but  in  my 
opinion  we  have  no  such  power,  though  I  think  they  have  acted 
under  a  mistake.  I  have  not  the  slightest  intention  to  question 
the  exclusive  prerogative  of  the  House  of.  Commons  in  voting 
money.  Before  any  such  vote  is  actually  made,  I  believe  that  a 
mere  resolution  in  the  House  could  not  be  properly  brought  before 
us.  But  when  the  money  has  been  voted  and  an  Appropriation 
Act  passed,  this  Act  must  be  construed  when  it  comes  before  us 
like  any  other  Act.  The  Appropriation  Act  regulates,  so  far  as  it 
goes,  what  is  to  be  clone  with  the  money,  and  we  find  that  it  appro- 


SECT.  V.  —  CASKS   OF   LOSS    WHERE    NO    RIGHT    OF    ACTION.       811 
No,  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury. 

priates  a  portion  of  it  to  the  cost  of  criminal  prosecutions,  and 
grants  money  for  these  expenses,  "hitherto  paid  out  of  county 
rates."  The  first  question  is,  what  do  these  words  mean  '.  I  lis- 
tened attentively  to  the  Solicitor-General's  argument  on  this  part 
of  the  case,  but  could  find  nothing  to  shake  my  opinion  that  the 
meaning  of  the  words  is  that  the  costs  which  formerly  were  pay- 
able out  of  the  county  rates,  after  having  been  taxed  in  the  manner 
fixed  by  law,  should  still  be  paid  out  of  these  rates,  but  that  the 
payments  should  be  recouped  by  the  Treasury.  I  cannot  doubt 
that  the  Appropriation  Act  does  not  simply  mean,  "this  sum  of 
money  shall  not  be  applied  to  any  other  purpose,"  but  that  it  also 
means,  "this  sum  of  money  shall  be  applied  to  that  purpose,"  and 
consequently  that  the  effect  of  the  appropriation  clause  was  to 
grant  a  sum  of  money  to  Her  Majesty  to  be  applied  to  the  payment 
of  those  costs,  which  the  county  had  hitherto  been  obliged  to  pay. 
What  seems  to  have  been  done  in  fact  is  this :  Although  the  par- 
ticular bill  of  costs  is  duly  incurred  according  to  the  existing  law, 
although  these  costs  have  been  duly  ordered  by  the  existing  law  to 
be  paid,  although  the  proper  taxing  officers  have  duly  taxed  these 
costs,  and  consequently  the  county  is  bound  to  pay  them,  the 
Treasury  seem  to  have  assumed  that  they  may  appoint  examiners, 
and  on  the  report  of  these  examiners  advise  the  Crown  not  to 
appropriate  the  full  amount,  but  to  keep  back  some  portion  of  it, 
I  think  this  is  decidedly  bad,  though  I  have  not  the  slightest  doubt 
that  it  is  honest  advice.  Passing  from  these  matters,  if  there  were 
a  statutable  obligation  upon  the  Lords  of  the  Treasury  to  do  what 
they  are  asked  to  do  by  the  mandamus,  it  seems  to  me  that  it 
ought  to  be  granted,  particularly  where  the  application  is  made  on 
behalf  of  persons  who  have  a  direct  interest  in  it.  Of  course  it 
would  not  do  for  a  mere  stranger  to  move  in  the  matter,  but  the 
treasurer  of  the  county  rate  who  has  been  obliged  to  make  pay- 
ments (for  which,  according  to  the  construction  which  I  put  on  the 
Act,  he  ought  to  be  indemnified)  has  a  clear  pecuniary  interest,  if 
we  have  power  to  grant  the  mandamus.  But  here  1  think  the 
case  fails.  The  general  principle  applicable,  not  merely  to  cases  of 
mandamus,  but  running  through  the  whole  law,  is,  that  where  an 
obligation  is  cast  upon  the  principal  and  not  upon  the  servant,  we 
cannot  enforce  it  against  the  servant,  so  long  as  he  remains  in  the 
service  of  the  particular  master.  To  take  a  familiar  instance :  If 
an  application  were  made  for  a  mandamus  to  the  secretary  of  a 


812  ACTIOM  (right  of). 


> 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury. 

railway  company  to  do  something,  it  would  not  be  granted  merely 
because  the  railway  company,  his  employers,  were  under  an  obli- 
gation to  do  it.  Now,  it  can  make  no  difference  that  the  principal 
here,  the  Sovereign,  can  only  be  sued  by  petition  of  right,  and  per- 
haps not  at  all.  There  is  the  familiar  case  of  the  surveyor  of  high- 
ways, who  is  the  servant  of  the  inhabitants  of  the  parish.  The 
inhabitants  of  the  parish  cannot  be  sued,  because  they  are  not  a 
body  corporate,  but  the  surveyor  of  highways  is  not  to  be  respon- 
sible for  the  non-performance  of  their  duties  or  the  negligence  of 
their  servants,  though  he  is  the  person  who  acts  for  them.  The 
same  principle  applies  to  a  mandamus  if  the  duty  is  by  statute. 
(Perhaps  "duty"  is  hardly  the  word  to  employ  with  regard  to  Her 
Majesty,  —  the  law  speaks  in  respectful  terms,  and  does  not  use  the 
word  duty  in  reference  to  Her  Majesty.)  But  where  the  intention 
of  the  legislature  is  that  the  Crown  should  be  advised  to  do  a  thing, 
and  where  the  obligation,  if  1  may  use  the  word,  is  east  upon  the 
servants  of  the  Crown  to  advise,  we  cannot  enforce  that  obligation 
against  the  servants  by  mandamus  merely  because  the  Sovereign 
happens  to  be  the  principal.  There  are  many  cases  applicable  to 
this  subject,  beginning  with  the  Post  Office  cases  in  the  time  of 
Lord  Holt,  where  Lord  Holt  differed  from  the  rest  of  the  court,  and 
it  was  held  that  the  Postmaster-General  was  not  liable  as  a  carrier 
for  non-delivery  of  letters,  because  it  was  in  effect  the  Crown, 
Quaere  Lane  v.  Cotton,  1  Salk.  17.  And,  similarly,  where  through 
the  clumsiness  of  a  man  steering  a  ship  of  war  a  merchantman  was 
run  down,  it  was  held  that  neither  the  Crown  nor  the  captain  of 
the  man-of-war  could  be  sued.  Whenever,  therefore,  the  case  is 
one  of  servants  of  the  Crown,  and  the  only  duty  which  the  servant 
owes  to  the  Sovereign  and  to  the  House  of  Commons  is  that  of  not 
giving  bad  advice,  we  cannot  grant  a  mandamus.  This  being  so, 
the  question  conies  to  be  whether  it  can  be  shown  (the  common 
law  is  out  of  the  question)  that  a  duty  is  cast  upon  the  Treasury 
with  regard  to  third  persons,  and  not  merely  to  the  queen,  to  issue 
the  minute  in  question.  1  certainly  cannot  find  any  such  duty 
from  the  case  referred  to  of  The  Queen  v.  The  Lords  of  the  Treas- 
ury, ah  pro.  It  is  true  that  in  that  case  the  rule  was  granted,  but 
it  was  upon  the  expectation  that  the  point  would  be  more  fully 
argued  on  the  return,  and  taken  to  a  court  of  error.  But  it  appears 
from  what  Lord  C-AMPBELL  said,  who  was  then  Attorney-General, 
that  he  advised  the  Crown  to  pay  the  money,  but  to  alter  the  effect 


SECT.  V.  —  (ASKS   OF   LOSS   WHERE   NO    RIGHT   OF   ACTION.       813 
No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury. 

of  the  Act  next  year,  and  the  case  of  the  Queen  Dowager  seemed 
to  show  that  this  was  not  bad  advice.  Lord  Campbell  said  that 
§  13  of  4  &  5  Will.  IV.  did  cast  a  specific  duty  upon  the  Lords  of 
the  Treasury  to  giant  a  warrant  or  to  execute  a  warrant  wherever 
there  was  a  sum  tiled  as  a  charge  upon  the  Consolidated  Fund. 
That  was  Lord  Campbell's  view  of  the  statute,  and  it  was  upon  this 
view  that  it  was  said  that  they  had  jurisdiction  in  the  Queen 
Dc wager's  case.  It  was  not  much  argued,  and  it  is  not  necessary 
to  inquire  whether  it  was  mistaken  or  not,  though  it  seems  doubt- 
ful when  we  look  at  the  words  whether  they  were  not  misunder- 
stood. However,  that  Act  is  repealed,  and  the  section  which  is 
supposed  to  create  the  duty  no  longer  exists.  Upon  that  Mr. 
Gorst  argued  with  great  ingenuity  that  the  effect  of  the  Audit  Act, 
29  &  30  Vict.  c.  39,  was  in  fact  to  cast  a  duty  upon  the  Lords  of 
the  Treasury  ;  but  I  am  unable  to  see  that  the  Act  amounts  to  more 
than  this,  that  Her  Majesty,  to  whom  the  money  is  granted  in  law, 
is  to  administer  it  according  to  the  advice  of  responsible  counsel- 
lors, and  this  must  be  done  through  the  hands  of  her  servants.  I 
have  found  nothing,  looking  at  the  section  adverted  to,  to  make  the 
Lords  of  the  Treasury  (who  have  the  money  in  their  hands  brought 
from  the  Bank  of  England  until  it  is  paid  to 'the  recipients)  in  any 
way  more  amenable  to  third  persons  than  in  the  case  I  have  spoken 
of.,  —  namely,  a  person  whose  servant  has  got  money  to  pay  weekly 
bills  or  other  matters,  or  power  to  draw  upon  the  bank  for  that 
purpose. 

It  seems  to  me  that  the  obligation,  such  as  it  is,  is  upon  Her 
Majesty,  to  be  discharged  through  her  servants,  so  that  the  servants 
cannot  be  proceeded  against.  I  think,  therefore,  that  there  ought 
to  be  no  rule. 

Mellor,  J.  I  am  of  the  same  opinion.  I  think  the  changes  to 
which  our  attention  has  been  called  in  the  various  acts  of  Parlia- 
ment do  not  show  any  change  in  the  relation  of  the  ministers  of 
the  Crown  towards  the  Crown  All  that  lias  been  done  is  to  alter 
the  machinery  by  which  the  grant  is  to  be  distributed  in  the  public 
service,  and  I  am  therefore  clearly  of  opinion  that  this  mandamus 
cannot  issue.  I  think  that  in  the  taxation  of  these  costs  the  Treas- 
ury may  properly  require  the  production  of  vouchers,  but  that,  in 
reducing  the  amount  allowed  on  taxation,  they  have  disregarded 
the  operation  of  the  Appropriation  Act.  The  object  of  the  grant  is 
to  defray  the  charges,  and  the  Treasury  ought  not  to  be  at  liberty  to 


814  ACTION  (right  of). 


? 


tfo.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury. 

allow  them  or  not,  as  it  thinks  fit.  I  agree  with  the  observations 
of  my  Lord  and  brother  Blackburn  that  the  Treasury  have  no  doubt 
acted  under  a  mistaken  view  of  their  duty,  but  I  cannot  approve 
of  the  course  they  have  adopted. 

Lush,  J.  I  am  also  of  opinion  that  this  rule  must  be  discharged. 
I  think  that  the  applicants  have  failed  to  make  out  that  which  is 
essential  to  entitle  them  to  a  mandamus,  —  namely,  that  there  is  a 
legal  duty  imposed  upon  the  Lords  of  the  Treasury,  as  between 
them  and  the  applicants,'  to  pay  over  the  money  in  question.  The 
only  statute  which  can  be  brought  in  aid  is  the  Appropriation  Act, 
and  that,  as  it  seems  to  me,  clearly  votes  the  money  to  the  Crown 
upon  trust  that  they  will  dispense  it  on  certain  specified  purposes. 
When  the  money  gets  into  the  hands  of  the  Commissioners  of  the 
Treasury,  who  ore  responsible  for  it,  it  is  in  their  hands  as  servants 
or  agents  of  the  Crown,  but  practically  of  the  House  of  Commons, 
and  in  no  sense  are  they  accountable  to  this  or  any  other  court  of 
justice.  There  is  not,  to  my  mind,  a  word  in  this  or  any  other  Act 
showing  an  intention  on  the  part  of  the  legislature  to  make  the 
officers  of  the  Crown  subject  to  the  jurisdiction  of  this  court  with 
reference  to  the  disbursement  of  moneys  voted  by  the  Crown  for 
specific  purposes. 

Upon  the  second  point  I  am  also  of  opinion  that  the  practice 
resorted  to  by  the  Treasury  of  retaxing  costs  paid  by  the  county, 
pursuant  to  the  direction  of  the  Judges  at  the  time,  is  a  practice  in 
violation  of  the  terms  of  the  Appropriation  Act.  If  this  question 
had  arisen  prior  to  the  year  1865,  I  should  have  been  unable  to 
collect  from  the  language  of  the  Appropriation  Act  what  the  inten- 
tion was,  because  up  to  that  time  the  words  of  the  Appropriation 
Act  were  general.  But  from  the  year  1865  the  language  has  been, 
I  cannot  help  supposing,  intentionally  altered.  Before  we  read  the 
clause  it  is  needful  to  bear  in  mind  that,  by  several  acts  of  Parlia- 
ment, costs  are  allowed  or  allowable  in  most  prosecutions,  and  are 
to  be  paid  in  the  first  instance  by  the  county  treasurer.  An  order 
is  supposed  to  be  made  in  each  instance  upon  the  county  treasurer, 
who  is  bound  to  pay  in  the  first  instance  the  person  to  whom  those 
costs  are  due.  Beading,  in  reference  to  that  state  of  things,  the 
language  of  the  Appropriation  Acts  from  1855  to  the  present  time 
(and  they  are  nearly  all  in  the  same  language),  I  think  one  cannot 
be  at  a  loss  to  ascertain  what  is  the  meaning  of  the  legislature. 
The  words  are,  "  for  prosecutions  at  assizes  and  Courts  of  Quarter 


SECT.  V.  —  CASKS    OF    LOSS    WHERE    NO    RIGHT    OF   ACTION.       815 
No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Notes. 

Sessions,  formerly  paid  out  of  the  county  rate,  including  adjudica- 
tions under  the  Criminal  Justice  Aet, sheriffs'  expenses,"  and  so  on, 
such  a  sum  of  money.  Up  to  a  given  period  the  costs  were  not 
only  paid  out  of  the  county  rate,  but  were  a  charge  upon  it,  and  the 
county  had  no  claim  anywhere  else.  For  several  years  the  coun- 
ties have  had  a  claim  by  virtue  of  the  statutes,  more  or  less,  upon 
the  Treasury. 

Now,  the  words,  "  formerly  paid  out  of  the  county  rate,"  to  my 
mind  clearly  imply  that  that  which  was  before  a  charge  upon  the 
counties  shall  be  so  no  longer,  but  the  Crown  or  the  Imperial 
Treasury  should  pay,  and  Parliament  provides  the  money  for  paying 
the  costs  of  prosecutions  at  assizes  and  quarter  sessions  which  were 
formerly  paid  out  of  the  county  rates-  They  are  still  paid  pri- 
marily out  of  the  county  rates ;  and  I  think  the  words,  read  with 
reference  to  the  present  condition  of  things,  do  clearly  imply  that 
those  which  the  counties  have  to  pay  in  the  first  instance  shall  be 
reimbursed  to  them  out  of  the  sums  voted  by  Parliament.  There- 
fore I  think  that  the  practice  which  seems  to  have  prevailed  for 
fourteen  years   is   entirely   unwarranted. 

Rule  disch  arged. 

ENGLISH   NOTES. 

The  remedy  by  a  private  person  for  a  grievance  or  wrong  suffered  by 
the  act  or  omission  of  the  various  persons  employed  in  the  service  of 
Her  Majesty,  is  pointed  out  by  rales  which,  though  apparently  plain 
in  outline,  bristle  with  difficulties  in  their  application.  The  rules  have 
been  summed  up  in  the  maxim  "  The  King  can  do  no  wrong;  "  and  this 
has  been  understood  in  English  law  to  imply:  — 

1.  The  ground  of  the  procedure  by  petition  of  right; 

2.  The  personal  responsibility   of  the  servants  of  the  Crown  for 

torts  committed  under  colour  of  the  King's  service;  and 

3.  The  personal  exemption  of  the  King  from  being  a  defendant  in 

any  action  or  proceeding  in  a  court  of  justice. 
1.   A  petition  of  right  lies:  — 

(a)  for  breach  of  contract,  whether  resulting  in  a  liquid  debt  (so  to 
speak),  or  in  unliquidated  damages.  Thomas  v.  The  Qi^een 
(1874),  L.  R.,  10  Q.  B.  31 ;  44  L.  J.  Q.  B.  17 ;  Windsor,  &c.  R>j. 
Co.  v.  The  Queen  and  the  Western  Counties  Ru.  Co.  (P.  C.  App. 
from  Canada,  1886),  11  App.  Cas.  607 ;  55  L.  J.  P.  C.  44.  Per- 
haps it  may  lie  for  equitable  relief  in  the  nature  of  specific 
performance  of  a  contract.  Kirk  v.  The  Queen  (1872),  L.  R., 
14  Eq.  558. 


816  ACTION   (right  of). 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Notes. 

(b)  Further,  a  petition  of  right  will  lie  where  the  land  or  goods  or 

money  of  a  subject  have  found  their  way  into  the  possession 
of  the  Crown,  and  the  petitioner  seeks  to  obtain  restitution, 
or,  if  restitution  cannot  be  given,  compensation  in  money. 
Feather  v.  The  Queen  (1865),  6  B.  &  S.  257,  per  Curiam, 
p.  294,  again  cited  in  Windsor,  &c.  Rij.  Co.,  11  App.  Cas.  COT, 
614;  55  L.  J.  P.  C.  44.  Perhaps  it  lies  where  the  Crown 
authorities  are  exercising,  under  colour  of  a  right,  an  ease- 
ment over  land,  in  excess  of  the  true  rights  of  the  Crown. 
Gervais  de  Clifton,  cited  in  Tobin  v.  The  Queen  (18(14),  16 
C.  P».  n.  s.  310,  at  p.  362,  et  seq. 

(c)  Semble  that  a  petition  of  right  would  lie  in  such  circumstan- 

ces as  those  which  appear  in  the  principal  case.  The  duty 
thrown  upon  the  Crown  by  statute  to  pay  for  a  certain  public 
service  appears  to  be  so  far  an  obligation  quasi  ex  contractu, 
as  to  bring  the  case  within  the  category  (u)  above  described. 

In  all  these  cases  the  theory  is  that  the  King,  as  soon  as  he  is  duly 
informed  that  the  money  is  due,  or  that  the  possession  ought  to  lie  given 
up,  will  act  accordingly.  It  would  seem  that  a  petition  of  right  and 
an  action  against  the  officials  cannot  be  concurrent  remedies  in  respect 
of  the  same  acts;  for  a  servant  of  the  Crown  contracting  in  that  capacity 
for  the  public  service,  is  not  personally  liable  upon  the  contract.  Mac- 
beath  v.  Haldimand  (1786),  1  T.  E.  172;  1  Pv.  R.  177.  Nor  can  he  be 
sued  in  his  official  capacity  upon  such  a  contract.  See  principal  case 
supra,  and  Palmer  v.  Hutchinson  (P.  C.  Appeal  from  Natal,  1881).  6 
App.  Cas.  626.  And,  if  the  possession  of  the  Crown  is  held  under  such 
circumstances  that  a  petition  is  necessary  to  clear  up  the  question  of 
right,  i^  can  hardly  be  that  any  of  the  servants  of  the  Crown  are  per- 
sonally liable  for  what  will  presumably  be  set  right  in  another  way. 

Rut  a  petition  of  right  will  not  lie  in  respect  of  money  in  the  hands 
of  the  Crown  which  has  been  paid,  under  treaty,  by  a  foreign  govern- 
ment, for  the  purpose  of  an  indemnity  to  a  class  of  persons  of  whom  the 
petitioner  is  one.  This  is  not  only  for  the  reason  that  no  specific  fund 
has  been  appropriated  for  the  petitioner,  but  also  for  the  reason  that 
by  the  making  or  performance  of  the  treaty  between  Her  Majesty  and 
the  foreign  government,  no  duty  arises  between  Her  Majesty  and  the 
subject  analogous  to  the  duty  arising  out  of  a  contract  or  trust.  Rus- 
tomjee  v.  The  Queen  (C.  A.  1876),  2  Q.  B.  D.  69;  46  L.  J.  Q.  B.  238. 

The  procedure  under  a  petition  of  right  was  simplified  by  the  Act  23 
&  24  Vict.  c.  34,  but  this  does  not  alter  the  essential  conditions  under 
which  the  remedy  can  be  pursued. 

2.  A  petition  of  right  does  not  lie  in  respect  of  a  pure  tort  done  by  a 
person  in  the  government  service.  By  a  pure  tort  is  here  meant  a  tres- 
pass or  other  wrong,  not  being  a  breach  of  contract,  and  not  being  such 


SECT.  V. — CASES   OF    LOSS    WHERE    NO    UIGHT   OF   ACTION.       817 
No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.    -  Notes. 

an  exercise  of  a  prima)  facie  right,  or  of  possession,  as  would  form  the 

ground  of  a  petition  of  right.  All  acts  by  which  such  a  wrong  is  done 
are,  by  a  necessary  presumption,  outside  the  scope  of  authority  of  tin- 
King's  service.  Tobin  v.  The  Queen  (C.  1'.  L864),  L6  C.  1!.  ar.  s.310; 
33  L.  J.  C.  P.  199;  Feather  v.  The  Queen  (Q.  B.  1865),  6  B.  &  S.  257; 
Windsor,  &c.  Ry.  Co.  v.  The  Queen,  &c,  11  App.  ('as.  607,  614;  55 
L.  J.  P.  C.  44.  For  such  a  wrong  the  remedy  is  an  action  against  the 
person  actually  doing  the  wrong.  And,  as  the  principal  case  shows, 
the  action  must  be  against  that  person  as  an  individual,  and  not  in  his 
character  of  a  servant  of  the  King.  Of  numerous  cases  in  which  actions 
have  been  maintained  against  persons  tor  acts  done  ostensibly  in  the 
King's  service,  it  may  suffice  to  mention,  Madrazo  v.  Willes  (1820),  3 
B.  &  Aid.  .'!.").'>  (an  action  against  a  British  officer  for  an  act  done  under 
the  supposed  authority  of  the  Act  for  suppressing  the  slave  trade,  but 
which  the  Court  held  to  be  unauthorised  by  the  Act);  Money  v.  Leach 
(1765),  3  Burr.  1742  (the  case  of  general  warrants)  ;  and  the  case  of 
Walker  v.  Baird  (P.  C.  1892),  App.  Cas.  p.  491;  61  L.  J.  P.  C.  92. 
more  fully  stated  below. 

3.  It  follows  from  the  personal  exemption  of  the  King  from  being  a 
defendant,  that  the  principle  respondeat  superior  is  wholly  absent  in 
actions  under  the  last-mentioned  head.  For,  ex  hypotJtesi,  the  King, 
who  is  the  ultimate  superior,  cannot  be  liable.  And  the  principle  of 
respondeat  superior  is  never  extended  (except  in  the  special  and  peculiar 
case  of  the  master  of  a  ship)  to  fix  a  liability  upon  a  superior  servant  for 
the  act  of  an  inferior  one.  So  in  Lane  v.  Cotton  (K.  B.  1701),  1  Lord 
Raym.  646,  it  was  decided  by  three  Judges  of  the  King's  Bench  against 
Holt,  C.  J.,  that  an  action  would  not  lie  against  the  Postmaster-General 
for  the  loss  of  a  letter  by  a  subordinate.  And  this  case  was  followed,  and 
treated  as  having  established  a  settled  rule  of  law,  by  Lord  Mansfield 
and  his  colleagues  in  Whitfield  v.  Lord  de  Despencer  (1778),  Cowp.  7.~>4. 

The  immunity  from  process  in  an  English  court  of  the  reigning  per- 
son in  a  foreign  independent  state,  has  recently  been  the  subject  of  an 
important  decision  of  the  Court  of  Appeal,  in  the  case  of  Mitchell  v. 
Saltan  of  Jolt  ore  (C.  A.  1883),  reported  in  1894,  1  Q.  B.  149. 

That  a  foreign  sovereign  cannot  be  made  responsible  in  an  English 
court  for  an  act  done  in  his  sovereign  capacity  in  his  own  country,  was 
decided  by  the  House  of  Lords  in  the  case  of  Duke  of  Brunswick  v. 
King  of  Hanover  (1848),  2  H.  L.  C.  1.  And  there  are  numerous  de- 
cisions to  the  effect  that  moveable  property,  belonging  to  a  foreign 
sovereign  as  such,  cannot  be  seized  or  affected  by  any  process  of  law, 
or  in  any  way  by  means  of  an  action  in  this  country.  Wadsworth  v. 
Queen  of  Spain  (1851),  17  Q.  B.  (Ad.  &  El.  n.  s.)  171;  20  L.  J.  Q.  B. 
vol.  i.  —  52 


818  ACTION    (RIGHT    OF). 


i 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Notes. 

488;  Smith  v.  Weguelin  (1869),  L.  R.,  8  Eq.  198;  38  L.  J.  Ch.  485; 
Tivycross  v.  Dreyfus  (C.  A.  1877),  5  Ch.  D.  351;  40  L.  J.  Ch.  510; 
Vuvasseur  v.  Krupp  (C.  A.  1878),  9  Ch.  D.  351;  The  Constitution 
(1879),  4  P.  D.  39;  48  L.  J.  P.  D.  &  A.  13;  The  Parlement  Beige 
(C  A.  1880),  5  P.  D.  197,— the  two  last  being  cases  of  ships  belong- 
ing to  foreign  governments  seized  in  admiralty  actions  in  rem. 

But  in  certain  cases  there  had  been  some  observations  thrown  out, 
to  the  effect  that  a  foreign  sovereign  may  (perhaps)  be  sued  in  our 
courts  by  a  British  subject,  on  an  obligation  contracted  in  a  private 
capacity.  Duke  of  Brunswick  v.  King  of  Hanover,  supra  (dicta, 
passini)  ;  Munclen  v.  Duke  of  Brunswick  (1847),  10  Q.  B.  (Ad.  &  El. 
n.  s.)  656;  The  Charkieh  (1873),  L.  R.,  4  A.  &  E.  59;  42  L.  J. 
Adm.  17.  Such  a  doctrine  is,  however,  entirely  repudiated  by  the 
Court  of  Appeal  in  the  case  of  the  Sultan  of  Jo  hove. 

In  this  case  (Jlitchell  v.  Sultan  of  Johore,  1894,  1  Q.  B.  149),  the 
plaintiff  alleged  that  the  defendant,  while  living  in  this  country  incog- 
nito and  under  an  alias,  had  promised  to  marry  her.  She  sued  for  breach 
of  promise,  and  the  case  came  before  the  Court  on  a  motion  to  set  aside 
an  order  for  service  of  the  writ  out  of  the  jurisdiction.  The  Court  of 
Appeal  unanimously  affirmed  the  judgment  of  Wills,  J.,  deciding,  — 
first,  that  the  status  of  the  person  named  as  defendant  in  the  action, 
as  an  independent  sovereign,  was  (for  the  purpose  of  the  motion)  con- 
clusively proved  by  a  letter  written  with  the  sanction  of  the  Secretary 
of  State  for  the  department  concerned  with  our  relations  with  him 
(i.  e.,  presumably  by  the  Queen's  authority);  and,  secondly,  that  the 
action  would  not  lie  against  such  a  person.  Wills,  J.,  in  his  judg- 
ment which  was  thus  affirmed,  observed  that  Lord  Justice  James,  in  a 
case  of  Strousbery  v.  Republic  of  Costa  Rica,  44  Law  Times  Rep.  199, 
had  pointed  out  the  only  two  exceptions  to  the  exemption  of  a  foreign 
sovereign  from  being  sued  in  our  courts:  "One  (he  says)  is  that 
'Where  a  foreign  sovereign  or  state  comes  into  the  municipal  courts  of 
this  country  for  the  purpose  of  obtaining  a  remedy,  then,  by  way  of 
defence  to  that  proceeding.  —  by  way  of  counterclaim,  if  necessary,  to 
the  extent  of  defeating  that  claim, —  the  person  sued  here  may  file  a 
counterclaim,  or  take  any  other  proceeding  against  that  sovereign  or 
state,  for  the  purpose  of  enabling  complete  justice  to  be  done  between 
them;'  the  other  exception  is  'the  case  in  which  a  foreign  sovereign 
may  be  named  as  a  defendant  for  the  purpose  of  giving  him  notice  of 
the  claim  which  the  plaintiff  makes  to  funds  in  the  hands  of  a  third 
person  or  trustee  over  whom  this  court  has  jurisdiction." 

The  Court  here  lias  no  jurisdiction  to  restrain  a  subject  from  doing 
in  a  foreign  country  what  he  is  authorised  to  do  by  the  sovereign  power 


SECT.  V.  —  CASES   OF    LOSS    WHERE    NO    KIGHT   OF    ACTION.       819 

No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Notes. 

there,  on  the  alleged  ground  that  it  is  a  wrong  or  breach  of  faith  (as 
between  that  sovereign  and  the  plaintiff)  to  give  the  authority.  (Hail- 
stone v.  The  Ottoman  Bank  i  L863),  32  L.  -I.  Ch.  228. 

As  between  a  British  subject  and  a  foreigner,  where  the  tortious  ac! 
-of  the  former  lias  been  authorised  or  adopted  and  ratified  by  his  govern- 
ment, it  becomes  the  act  of  the  State,  and  the  private  fight  of  action  is 
.merged  in  the  international  question  which  arises  between  the  govern- 
ment of  Her  Majesty  and  that  of  the  foreign  country.  Baron  v.  Den- 
man  (1848),  2  Ex.  1(57;  Feather  v.  The  Queen  (1865),  (i  B.  &  S.  l'.~>7, 
--at  p.  296. 

Huron  v.  Denman,  above  cited,  was  an  action  by  a  Spanish  subject 
against  a  British  naval  commander  for  trespass.  This  officer  had  been 
stationed  on  the  coast  of  Africa  with  instructions  to  suppress  the  slave 
trade  there.  On  the  request  of  the  governor  of  Sierra  Leone  lie  went 
to  a  place  on  the  Continent  to  obtain  the  liberation  of  two  British  sub- 
jects. He  succeeded  in  that  object,  and  also  obtained  a  treaty  from  the 
king  of  that  country  for  the  suppression  of  the  slave  trade  there.  In 
execution  of  this  treaty,  lie  destroyed  the  barracoons  of  the  plaintiff, 
and  carried  away  his  slaves  to  Sierra  Leone,  where  they  were  liberated. 
It  appeared  from  official  correspondence  that  these  acts  had  been  sub- 
sequently adopted  and  ratified  by  the  Lords  of  the  Admiralty,  as  well 
as  by  the  Secretaries  of  State  for  the  Home  and  Foreign  Departments. 
It  was  held  that  this  ratification  was  equivalent  to  a  prior  command  by 
the  government  of  Her  Majesty;  and  that  what  had  been  done  became 
-an  act  of  State,  the  responsibility  for  which  rested  not  with  the  officer, 
but  with  Her  Majesty's  government,  who  would  be  answerable  for  a 
•claim  made  through  the  Spanish  government. 

The  plea  of  "  act  of  State,"  in  the  sense  of  an  act  the  justification  of 
■which  on  constitutional  grounds  is  not  to  be  inquired  into,  cannot  be 
admitted  between  British  subjects  in  regard  to  acts  done  in  an  English 
•colony. 

Walker  v.  Baird  (1892),  App.  Cas.  p.  491;  61  L.  J.  P.  C.  92,  was 
an  appeal  to  the  Privy  Council  from  the  Supreme  Court  of  Newfound- 
land, in  which  some  nice  questions  were  raised.  The  plaintiff  sued 
the  defendant  (who  was  captain  of  one  of  Her  Majesty's  ships)  for  a 
trespass  by  taking  possession  of  his  lobster  factory  and  interfering  with 
iris  business.  The  defendant  pleaded  that  as  captain  of  the  ship  in 
-question  he  had  the  duty  committed  to  him  of  enforcing  a  modus 
vivendi  embodied  in  an  agreement  between  Her  Majesty  and  the  Re- 
public of  France;  that  under  this  agreement  no  lobster  factories  which 
were  not  in  existence  at  a  certain  date  should  be  permitted  unless  by 


820  ACTION  (right  of). 


) 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Notes. 

the  joint  consent  of  the  British  and  French  commanders;  that  the 
plaintiff's  factory  was  a  contravention  of  the  modus  viuendij  that  tin- 
defendant  did  for  this  cause  take  possession  of  (lie  factory;  that  this 
was  done  in  pursuance  of  his  duty  and  in  his  political  capacity,  and  was 
an  act  of  State  done  under  the  modus  vtvendi  ;  and  that  his  acts  had 
heen  ratified  by  Her  Majesty  as  acts  of  State  and  public  policy.  And 
he  submitted  that  the  matters  on  which  he  so  rested  his  defence  were 
acts  and  matters  of  State  arising  out  of  the  political  relations  between 
England  and  France;  that  they  involved  the  construction  of  the  modus 
Vivendi  and  other  acts  of  State,  and  were  matters  which  could  not  be 
inquired  into  by  the  Court.  The  plaintiff  objected  that  the  defence 
did  not  set  forth  any  ground  of  defence  to  the  action;  and  by  direction 
of  the  Court  the  question  was  argued  upon  the  point  of  law. 

The  Supreme  Court  of  Newfoundland,  after  argument,  held  that  the 
statement  of  defence  disclosed  no  answer  to  the  plaintiff's  claim,  but 
gave  the  defendant  leave  to  amend.  This  judgment  was  rested  on 
the  ground  that  in  an  action  of  this  description  between  British  subjects 
for  a  trespass  committed  within  British  territory  in  tune  of  peace,  it  is 
no  sufficient  answer  to  say  that  the  trespass  was  an  "  act  of  State  " 
committed  under  the  authority  of  an  agreement  or  modus  Vivendi  with 
a  foreign  power;  and  that,  in  such  a  case,  as  between  the  Queen's  sub- 
jects, the  validity,  interpretation,  and  effect  of  all  instruments  and 
evidence  of  title  and  authority  rest  with  the  C  uirt  of  competent  juris- 
diction.    This  judgment  was  appealed  to  the  Privy  Council. 

On  the  hearing  of  the  appeal,  it  was  argued  on  the  part  of  the  appel- 
lant that  the  acts  complained  of  were  done  by  the  appellant  in  pursuance 
of  orders  given  by  the  Crown,  which  were  necessary  for  carrying  out  the 
treaty  made  by  Her  Majesty  by  virtue  and  in  lawful  exercise  of  her  pre- 
rogative; that  orders  and  acts  necessary  to  carry  this  into  effect  are  acts 
and  matters  of  State,  and  cannot  be  questioned  in  any  of  Her  Majesty's 
courts.  The  only  question  to  be  tried  was  whether  the  act  of  the  appel- 
lant was  within  the  modus  vivendi  compact;  and  that  question  was 
sufficiently  raised  by  the  defence. 

On  the  part  of  the  respondents  it  was  argued:  The  inquiry  as  to  the 
right  of  Her  Majesty  to  authorise  an  act  committed  by  one  subject 
towards  another  cannot  be  excluded  from  the  jurisdiction  of  the  Court; 
for,  as  between  Her  Majesty  and  one  of  her  subjects,  there  can  be  no 
such  thing  as  an  act  of  State.  With  regard  to  State  necessity,  there  is 
no  authority  for  saying  that  State  necessity  will  make  a  treaty  binding 
upon  subjects  by  force  of  prerogative.  And  if  necessity  is  to  override  law, 
it  is  not  sufficient  for  the  appellant  to  show  a  necessity  for  the  treaty; 
he  must  show  a  necessity  for  the  particular  mode  of  carrying  it  into 
effect — -that  is,  for  doing  so  without  an  Act  of  Parliament. 


SECT.  V. — CASKS    OF    LOSS    WHERE    NO    RIGHT    OF    ACTION.       82] 
No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Notes. 

The  judgment  of  the  Judicial  Committee,  delivered  by  Lord  IIkk- 
schell,  affirmed  the  judgment  of  the  Newfoundland  Court.  They  de- 
clared to  be  wholly  untenable  the  suggestion  that  the  defendants'  acts 
could  be  justified  as  arts  of  State,  or  that  the  Court  was  not  competent 
to  inquire  into  a  matter  involving  the  construction  of  treaties  and  other 
acts  of  State.  They  observed  that  the  argument  for  the  appellant  was 
reduced  to  this:  that  (as  was  truly  said)  the  power  of  making  treaties 
of  peace  is  vested  by  our  constitution  in  the  Crown.  That,  therefore 
(as  it  was  argued),  there  must  of  necessity  reside  in  the  Crown  the 
power  of  compelling  its  subjects  to  obey  a  treaty  arrived  at  for  putting 
an  end  to  a  state  of  war;  and  that  it'  that  be  so  the  power  must  equally 
extend  to  a  treaty  having  for  its  object  the  preservation  of  peace,  and 
to  an  agreement  arrived  at  to  avert  imminent  war.  This  argument, 
the  Committee  observed,  raised  grave  questions,  on  which  they  did  not 
find  it  necessary  to  express  an  opinion.  They  agreed  with  the  Court 
below  in  thinking  that  the  allegations  contained  in  the  statement  of 
defence  did  not  bring  the  case  within  the  proposition  contended  for. 

The  judgment,  guarded  as  it  is,  appears  to  establish  the  general 
proposition  contended  for  by  the  respondents,  that  as  between  Her 
Majesty  and  a  subject  (in  a  colony)  there,  is  no  such  thing  as  an  act  of 
State.  What  is  left  open  by  the  judgment  is  not  the  question  whether 
an  act  prima,  facie  wrongful  can  be  justified  as  an  "  act  of  State,"  but 
the  much  narrower  question,  whether  the  act  can  on  constitutional 
principles  be  justified  on  the  ground  of  necessity  for  carrying  out  a 
treaty  or  agreement  of  the  special  character  suggested  in  the  argument. 


"ACT  OF   STATE"  AS  APPLIED   TO   THE   GOVERNMENT 

OF   INDIA. 

By  C.  P.  Ilbert. 

The  doctrine  of  "act  of  State"  has  acquired  exceptional  importance 
in  actions  against  the  East  India  Company  and  the  Government  of 
India.  The  Indian  cases  rest  on  the  same  principles  as  the  English 
cases  noted  above,  but  present  special  features  arising  out  of:  — 

(1)  The  dual  character  of  the  East  India   Company  as  a  trading 

company  and  a  territorial  sovereign; 

(2)  The  ambiguous  position  of  Indian  princes  and  chiefs  in  their 

relation  to  the  Indian  government,  raising  the  question 
whether  they  ought  to  be  treated  as  foreign  rulers  or  as 
subjects;  and 


822  ACTION    (RIGHT    OF). 


► 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Notes. 

(3)  The  special  statutory  right  of  action  against  the  Secretary  of 
State  for  India  in  Council,  and  the  statutory  restrictions  ore 
the  jurisdiction  of  Indian  courts  in  matters  relating  to  the 
government  of  India. 
The  East  India  Company  was,  in  its  inception,  an  ordinary  trading- 
company,  not  differing  in  its  material  characteristics  from  other  trading: 
companies  established  about  the  same  time,  such  as  the  Levant  Com- 
pany and  the  Russia  Company,  and,  like  them,  carrying  on  its  local 
trade  from  factories  held  by  a  precarious  tenure  under  the  local  sover- 
eign. But  the  Company  soon  acquired,  under  its  charters,  the  power  of 
making  peace  and  war,  of  concluding  treaties,  and  of  minting  coin,. 
and  other  attributes  of  sovereignty.  And  after  its  acquisition  of  the- 
Island  of  Bombay,  in  1069,  and  still  more  after  its  acquisition  of  actual 
supreme  power  over  the  provinces  of  Bengal,  Behar,  and  Orissa,  irs 
1765,  it  held  the  position  of  a  great  terricorial  sovereign,  by  authority- 
derived  partly  from  charters  and  Acts  of  the  British  Crown  and  Parlia- 
ment, and  partly  from  cessions  from,  or  treaties  with,  Indian  princes- 
For  intelligible  reasons  the  company  preferred,  in  its  early  days  of 
sovereignty,  to  rely  on  the  authority  derived  from  the  latter  source,, 
while,  at  the  same  time,  the  British  government  was  reluctant  to  as- 
sume the  responsibility  of  direct  sovereignty  over  the  vast  territorial 
possessions  which  had  been  acquired  by  the  Company  in  India.  Thus 
the  position  resembled  in  many  respects  that  of  modern  "protectorates'* 
in  Africa  and  elsewhere.  The  term  "British  subject,"  as  used  in  the 
earlier  Acts  relating  to  India,  does  not  include  the  native  inhabitants 
of  the  provinces  of  Bengal,  Behar,  and  Orissa;  and  it  was  doubtful 
whether,  and  how  far,  those  provinces  constituted  British  territory  iu 
the  full  sense.  But  circumstances  soon  compelled  the  British  govern- 
ment to  assume  the  powers  and  responsibilities  of  direct  sovereignty  in 
India.  They  appointed  a  Governor-General  and  a  Supreme  Court, with 
extensive  powers  of  administering  and  applying  English  law;  and  by 
the  establishment  of  the  Board  of  Control  they  placed  the  exercise  of 
sovereign  powers  by  the  Company  in  complete  subordination  to  the 
executive  government  of  the  day. 

The  gradual  assertion  of  sovereignty  by  the  British  government  is  re- 
flected in  the  preamble  to  the  successive  Charter  Acts.  By  the  Act  of  1793 
(33  Geo.  III.  c.  52)  the  Company  are  continued  in  the  possession^  their 
territorial  acquisitions  "  without  prejudice  to  the  claims  of  the  public.''' 
By  the  Act  of  1813  (53  Geo.  III.  c.  155),  the  Company  are  allowed  t<» 
remain  in  possession  of  their  territorial  acquisitions  for  a  further  term. 
"without  prejudice  to  the  undoubted  sovereignty  of  the  Crown  of  the 
United  Kingdom  of  Great  Britain  and  Ireland  in  and  over  the  same.'* 


SECT.  V.  —  CASES   OF   LOSS   WHERE   NO    RIGHT    OF    ACTION.       823 
No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Notes. 

By  the  Act  of  1833  (3  &  4  Will.  IV.  c.  85),  the  Company  arc  deprived 
of  their  trading  functions,  and  the  territories  under  the  government  of 
the  Company  are  continued  under  that  government  only  ••in  trust  for 
the  Crown  of  the  United  Kingdom  of  Great  Britain  and  Ireland." 

"It  is  manifest,"  remarked  Tindal,  C.  J.  (in  1839),  "that  the  Easi 
India  Company  have  been  invested  with  powers  and  privileges  of  a  two- 
fold nature,  perfectly  distinct  from  each  other;  namely,  powers  to  carry 
on  trade  as  merchants,  and,  subject  only  to  the  prerogative  of  tin- 
Crown,  to  be  exercised  by  the  Board  of  Commissioners  for  the  affairs  of 
India,  power  to  acquire  and  retain  and  govern  territory,  to  raise  and 
maintain  armed  forces  by  sea  and  land,  and  make  peace  or  war  with 
the  native  powers  of  India."  Gibson  v.  East  India  Company  (1839), 
5  Bingham,  N.  C.  2(32.  And  see  Rajah  of  Coorg  v.  East  India  Co. 
(1860),  29  Beav.  300,  at  p.  308. 

Finally,  in  1858,  by  the  "  Act  for  the  Better  Government  of  India, " 
21  &  22  Vict.  c.  106,  the  government  of  the  territories  vested  in  the 
Company  in  trust  for  the  Crown  is  directly  transferred  to  and  vested  in 
the  Queen,  and  is  to  be  exercised  in  her  name. 

By  this  Act  of  1858,  the  Secretary  of  State  in  Council  of  India  was 
constituted  a  body  corporate  for  certain  purposes,  and  (under  §05) 
might  sue  and  be  sued  by  that  name;  and  all  persons  were  to  have  the 
same  remedies  against  the  Secretary  of  State  in  Council  of  India  as 
they  would  have  had  against  the  East  India  Company. 

By  §  6  of  the  amending  Act  of  1859  (22  Vict.  c.  41),  the  Secretary  of 
State  for  India  in  Council  was  expressly  made  liable  to  be  sued  in  respect 
of  certain  contracts. 

From  the  twofold  character  of  the  East  India  Company  as  above  ex- 
plained, it  followed  that  legal  proceedings  against  the  Company  in  its. 
trading  capacity  were  governed  by  the  same  principles  as  proceedings 
against  private  individuals;  while  proceedings  against  the  Company  in 
its  capacity  of  territorial  sovereign,  as  the  representative  of  the  British 
Crown,  were  governed  by  the  principles  applying  to  actions  against 
officers  of  the  Crown.  Moreover,  by  enactments  which  are  still  in 
force,  the  Indian  courts  were  prohibited  from  exercising  jurisdiction 
against  the  Governor-General  or  the  governor  of  Madras  or  Bombay,  or 
any  of  the  members  of  their  councils,  in  respect  of  anything  counselled, 
ordered,  or  done  by  any  of  them  in  his  public  capacity  only  (21  Geo. 
III.  c.  70  §  1),  or  in  any  matter  concerning  the  revenue  or  concern- 
ing any  act  ordered  or  done  in  the  collection  of  revenue  according  to 
the  usage  and  practice  of  the  country  or  the  regulations  of  the  Governor- 
General  in  council  (21  Geo.  III.  c.  70  §  8).  The  same  principles  apply 
in  the  case  of  legal  proceedings  against  the  Secretary  of  State  in  Council 
as  the  statutory  successor  of  the  East  India  Company. 


824  ACTION   (right  of). 


No.  19.  —  The  Queen  v.   Lords  Commissioners  of  the  Treasury.  —  Notes. 


Closely  allied  to  the  question  as  to  the  capacity  in  which  the  East 
India  Company  was  acting  in  special  cases,  is  the  question  as  to  the 
relation  in  which  Indian  princes  and  chiefs  formerly  stood  to  the  East 
India  Company,  and  now  stand  to  the  British  Crown.  This  relation 
has  gradually  changed.  In  the  early  days  of  British  sovereignty  in 
India  the  East  India  Company  was  a  local  sovereign,  exercising  its  au- 
thority in  rivalry  with  other  country  powers,  making  defensive  and 
offensive  treaties  with  them,  and  striving  to  maintain  its  position  by 
establishing  a  balance  of  power  between  them.  It  gradually  became 
the  predominant  power  throughout  the  peninsula,  exercising  direct 
sovereignty  over  the  greater  part  of  it,  and  paramount  influence  over 
the  rest.  The  paramount  suzerainty  of  the  British  Crown  throughout 
India  was  recognised  and  emphasised  by  the  formal  assumption  of  the 
Imperial  title  at  Delhi  in  1877. 

Throughout  British  India  the  sovereignty  of  the  British  government 
is  now  full  and  complete.  In  the  native  states  it  is  partial  and  incom- 
plete. The  territory  of  these  states  is  not  technically  British  territory, 
and  the  subjects  of  these  states  are  not  technically  British  subjects, 
though  they  are  entitled  to  British  protection.  (See  §  15  of  the  Foreign 
Jurisdiction  Act,  1890,  53  &  54  Vict.  c.  37.)  India,  in  its  wider  sense 
as  including  these  territories,  has  been  defined  by  a  recent  Act  (52  &  53 
Vict.  c.  63  §  18  (5)),  as  meaning  "British  India  together  with  any 
territories  of  any  native  prince  or  chief  under  the  suzerainty  of  Her 
Majesty  exercised  through  the  Governor-General  of  India  or  through  any 
governor  or  other  officer  subordinate  to  the  Governor-General  of  India." 
The  special  and  exceptional  position  of  native  princes  and  states,  which 
has  been  made  the  subject  of  a  careful  study  in  Mr.  Tupper's  recent  work, 
4<Our  Indian  Protectorate,"  occasionally  raises  difficult  questions  in  in- 
ternational and  municipal  law.  How  far  and  in  what  sense  ought  the 
territories  of  native  states  to  be  treated  as  foreign  territory,  and  their 
chiefs  and  subjects  as  foreigners?  And,  in  particular  cases,  ought  a  terri- 
torial magnate  to  be  treated  as  a  British  subject  owning  land  which  con- 
stitutes British  territory  and  is  subject  to  British  law.  or  as  a  sovereign 
power  ruling  over  subjects  of  his  own  and  over  territory  which  is  not 
British  ?  And,  if  he  passes  from  one  condition  to  the  other,  what  prin- 
ciples are  to  be  applied  to  his  rights  and  the  rights  of  those  claiming 
under  him  during  and  immediately  after  the  transitional  state?  It  will 
be  seen,  from  the  cases  referred  to  below,  that  it  is  on  the  answer  to 
these  questions  that  the  most  important  decisions  in  the  Indian  "Act 
of  State  "  cases  turn. 

The  first  reported  case  in  which  the  plea  of  "  Act  of  State"  was 
raised  by  the  East  India,  ( !ompany  appears  to  have  been  The,  Nabob  of  the 
'  'arnatic  v.  East  India  Company  (1793),  1  Ves.  Jr.  371;  2  Ves.  Jr.  56; 


SECT.  V.  —  CASES   OF   LOSS    WHEKE    No    IMOUT    oK    ACTION. 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Notes. 


3  Bro.  C.  C.  292;  4  Bro.  C.  C.  100.  Tins  was  a  suit  for  an  account, 
brought  by  the  Nabob  of  A.rcot  against  The  East  India  Company.  <  >n 
the  hearing  it  appeared  by  the  Company's  answer  thai  the  subject-matter 
of  the  suit  was  a  matter  of  political  treaty  between  the  Nabob  and  the 
Company,  the  Company  having  acted  throughout  the  transaction  in  their 
political  capacity,  and  having  been  dealt  with  by  the  Nabob  as  it'  they 
were  an  independent  sovereign.     On  this  ground  the  bill  was  dismissed. 

The  same  principle  was  followed  in  the  case  of  The  East  India  Co.  v. 
Syed  Ally  (1827),  7  Moo.  Ind.  App.  ooo,  where  it  was  held  that  the  re- 
sumption by  the  Madras  government  of  a  (t  Jaghire  "  granted  by  former 
Nawabs  of  the  Carnatic  before  the  date  of  cession  to  the  East  India 
Company  and  the  re-grant  by  the  Madras  government  to  another,  was 
such  an  act  of  sovereign  power  as  precluded  the  Court  from  taking  cog- 
nisance of  the  question  in  a  suit  by  the  heirs  of  the  original  grantee. 

The  case  of  Bedreechund  v.  Elphinstone  (1830),  2  State  Trials,  x.  s. 
379;  1  Knapp,  P.  C.  31G,  raised  the  question  as  to  the  title  to  booty 
taken  at  Poonah,  and  alleged  to  be  the  property  of  the  Peishwa.  It 
was  held  that  the  transaction  having  been  that  of  a  hostile  seizure, 
made,  if  not  flagrante  }ret  nondum  cessante  hello,  a  municipal  court 
had  no  jurisdiction  to  adjudge  on  the  subject;  and  that  if  an3'thing 
had  been  done  amiss,  recourse  could  be  had  only  to  the  Government 
for  redress. 

In  the  Tanjore  Case,  Secretary  of  State  in  Council  of  India  v.  Kama- 
chee  Boye  Sahaba  (1859),  13  Moo.  P.  C.  22,  a  bill  was  filed  on  the 
equity  side  of  the  Supreme  Court  of  Madras,  to  establish  a  claim  as 
private  property  to  certain  property  of  which  the  Government  had  taken 
possession,  and  for  an  account.  The  acts  in  question  had  been  done  on 
behalf  of  the  Government  by  a  commissioner  appointed  by  them  in  con- 
nection with  the  taking  over  of  Tanjore  on  the  death  of  the  Rajah 
Sevajee  without  heirs.  It  was  held  that,  as  the  seizure  was  made  by 
the  British  Government,  acting  as  a  sovereign  power,  through  its  dele- 
gate, the  East  India  Company,  it  was  an  act  of  State,  to  inquire  into 
the  propriety  of  which  a  municipal  court  had  no  jurisdiction.  Lord 
Kixgsdowx,  in  delivering  judgment,  remarked  that  "the  general 
principle  of  law  could  not  with  any  colour  of  reason  be  disputed.  The 
transactions  of  independent  states  between  each  other  are  governed  by 
other  laws  than  those  which  municipal  courts  administer.  Such  courts 
have  neither  the  means  of  deciding  what  is  right  nor  the  power  of  en- 
forcing any  decision  which  they  make."  It  was  held  that  the  act  com- 
plained of  fell  within  this  principle.  "Of  the  propriety  or  justice  of 
that  act,"  remarked  Lord  Kixgsdowx,  "neither  the  Court  below  nor 
the  Judicial  Committee  have  the  means  of  forming,  or  the  right  of  ex- 
pressing if  they  had  formed,  any  opinion.      Tt   may  have   been    just  or 


i 


826  ACTION*  (right  of). 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Notes. 


I 


unjust,  politic  or  impolitic,  beneficial  or  injurious,  taken  us  a  whole, 
to  those  whoso  interests  are  affected.  These  are  considerations  into 
which  their  Lordships  cannot  enter.  It  is  sufficient  to  say  that,  even 
if  a  wrong  has  been  done,  it  is  a  wrong  for  which  no  municipal  court 
of  justice  can  afford  a  remedy." 

In  the  Coorg  Case,  Rajah  of  Coorg  v.  East  India  Company  (1860), 
2!)  Beav.  300,  the  East  India  Company  had  made  war  against  the  Rajah 
of  Coorg,  annexed  his  territory  and  taken  his  property,  including  some 
of  the  Company's  notes.  The  Rajah  filed  a  bill  against  the  East  India 
Company,  but  it  was  held  that  the  Company  had  acted  in  their  sovereign 
capacity,  and  the  lull  was  dismissed. 

In  the  Delia  Case,  Rajah  Salig  Ram  ^.'Secretary  of  State  fur  India 
in  Council  (1872),  L.  R.  Ind.  App.  Supp.  Vol.  p.  lit),  the  question  was 
as  to  the  validity  of  the  seizure,  after  the  Indian  Mutiny,  of  estates 
formerly  belonging  to  the  titular  King  of  Delhi.  Here  also  it  was  held 
that  the  seizure  was  an  act  of  State,  and  as  such  was  not  to  he  ques- 
tioned in  a  municipal  court. 

In  Sirdar  Bhagwan  Singh  v.  Secretary  of  State  for  Ind  in  in  Coun- 
cil (1874),  L.  R.,  2  Ind.  App.  Cas.  38,  an  estate  belonging  to  a  former 
chief  in  the  Punjab  had  been  seized  by  the  Crown,  and  the  question  was 
whether  it  had  been  so  seized  in  right  of  conquest  or  by  virtue  of  a 
legal  title,  such  as  lapse  or  escheat.  It  was  held  that  the  seizure  had 
been  made  in  right  of  conquest,  and  as  such  must  be  regarded  as  an 
act  of  State,  and  was  not  liable  to  lie  questioned  in  a  municipal 
court. 

Forester  and  others  v.  Secretary  of  State  for  India  in  Council  (1872), 
L.  R.  Ind.  App.  Supp,  Vol.  p.  10.  is  a  case  on  the  other  side  of  the 
line.  In  this  case  the  Government  of  India  had,  on  the  death  of  Begum 
Sumroo,  resumed  property  formerly  belonging  to  her;  and  the  legality  of 
their  action  was  questioned  by  her  heirs.  It  appeared  that  the  Begum  had 
verj7  nearly  but  not  quite  acquired  the  position  of  a  petty  Indian  sover- 
eign, but  that  she  was  a  British  subject  at  the  time  of  her  death;  and 
that  the  seizure  in  question  was  not  the  seizure,  by  arbitrary  power,  of 
territories  which  up  to  that  time  belonged  to  another  sovereign  state: 
but  was  the  resumption,  under  colour  of  a  legal  title,  of  lands  pre- 
viously held  from  the  Government  by  a  subject  under  a  particular 
tenure,  on  the  alleged  determination  of  that  tenure;  and  that  conse- 
quently the  questions  raised  by  the  suit  were  cognisable  by  a  municipal 
court. 

Doss  v.  Secretary  of  State  for  India  in  Council  (187.")),  L.  R.,  19  Eq. 
509,  was  a  case  arising  out  of  the  extinction  of  a  sovereign  power  in 
India,  though  not  in  consequence  of  hostilities.  It  was  a  suit  brought 
in  the  English  Court  of  Chancery  by  creditors  of  the  late  King  of  Oudh 


SECT.  V.  —  CASKS   OF   LOSS   WHERE   NO    RIGHT   OF   ACTION.       827 
No.  19  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Notes. 


against  the  Secretary  of  State  as  his  successor.  It  was  held  that  as  the 
«lebt  had  been  incurred  by  the  late  King  in  his  capacity  as  sovereign, 
and  could  not  have  been  enforced  against  him  as  a  legal  claim,  it  did  not, 
upon  the  annexation  of  the  kingdom  of  Oudh,  become  a  legal  obligation 
upon  the  East  India  Company,  and  therefore  was  not,  by  the  Act  of 
1858,  transferred  as  a  legal  obligation  against  the  Secretary  of  State; 
and  on  this  ground  a  demurrer  to  the  bill  was  allowed. 

In  the  case  of  Grant  v.  Secretary  of  State  for  India  in  Council(  1877), 
2  C.  P.  D.  445  ;  4G  L.  J.  C.  P.  681,  a  demurrer  was  allowed  to  an 
action  by  an  officer  of  the  East  India  Company's  service  who  had  been 
compulsorily  retired  under  the  order  of  the  Government  of  India.  Here 
the  plaintiff  was  clearly  a  British  subject,  but  nothing  turned  upon 
this.  For  the  order  was  held,  as  an  act  of  administration  in  the  public 
service,  to  be  within  the  high  powers  of  government  formerly  intrusted 
to  the  East  India  Company  (not  as  a  trading  company,  but  as  a  sub- 
ordinate government),  and  now  to  be  exercised  by  the  Government  of 
India.  In  effect  the  question  was  not  of  a  sovereign  act,  but  of  the 
powers  of  high  (but  still  subordinate)  officers  of  Government. 


AMERICAN   NOTES. 

The  principal  case  is  cited  by  the  two  latest  writers  in  this  country  on 
Public  Officers  and  Mandamus.  (Throopon  Public  Officers,  §797 ;  Merrill  on 
Mandamus,  §§  89,  90),  and  its  doctrine  is  by  them  thought  to  prevail  in  this 
country.  Mr.  Throop  quotes  the  opinion  of  Chief  Justice  Marshall  in  Mar- 
bury  v.  Madison,  1  Cranch  (U.  S.  Sup.  Ct.),  160,  in  respect  to  heads  of  depart- 
ments and  cabinet  officers,  that  "  the  acts  of  such  an  officer,  as  an  officer,  can 
never  be  examinable  by  the  courts."  Mr.  Merrill  says,  *?  In  neither  country  .  .  . 
will  litigants  be  allowed  to  evade  this  rule,  and  the  writ  of  mandamus  will  not  be 
allowed  to  run  against  the  servants  of  the  Crown  or  State,  in  order  to  enforce 
satisfaction  of  claims  upon  the  Crown  or  State,"  citing  Cunningham  v.  Railroad 
Co.,  109  U.  S.  4-10.  "  The  writ  cannot  be  used  to  make  a  contract  which  will 
bind  the  State,"  as  to  compel  the  granting  of  a  contract  to  the  lowest  bidder  for 
printing  State  reports,  Mills  Pub.  Co.  v.  Larrabee,  78  Iowa,  97;  "nor  can  ii  be 
used  to  compel  a  State  to  fulfill  a  contract,"  Ex  parte  Ayers,  123  United  Slates, 
303;  People  v.  Dulaney,  90  Illinois.  503;  as  to  compel  a  Secretary  of  Slate  to 
deliver  laws  to  print,  Marshall  v.  Clark,  22  Texas.  •_':! ;  contra,  Stale  v.  Barker, 
4  Kansas,  379.  The  writ  has  been  denied  to  compel  the  commissioner  of  the 
State  general  land  office  to  issue  patents  without  payment  of  the  due  fees, 
Taylor  v.  Hal!,~\  Texas,  206;  to  compel  State  officers  to  payout  money  in 
absence  of  an  appropriation,  Carry.  Stale,  127  Indiana,  204  ;  and  of  a  war- 
rant, Weston  v.  Dane,  51  Maine.  401;  to  compel  an  auditor-general  to  pay 
over  to  a  county  treasurer  certain  taxes  collected  by  lam.  Ottawa  Count//  v. 
Auditor-General,  <>!)   Michigan,  1;  to  compel  State  treasurer  and  auditor  to 


i 


828  action  (right  of). 


I 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Notes. 

audit  and  pay  coupons,  after  a  statute  differently  appropriating  them,  State  v. 
Burke,  33  Louisiana  Annual,  498.  "  The  officers,"  says  Mr.  Merrill,  "  owe 
duty  to  the  State  alone.  .  .  .  They  can  be  moved  through  the  State,  but  not 
the  State  through  them."  Citing  Louisiana  v.  Jumel,  107  U.  S.  711  ;  Applin 
v.  Van  Tassel,  73  Michigan,  28,  182. 

But  it  seems  that  mandamus  will  issue  when  the  government  is  liable  and 
willing  to  pay  its  debt,  but  the  officer  himself  has  improperly  refused  to  act. 
Reeside  v.  Walker,  11  Howard  (U.  S.  Sup.  Ct.),  272;  Chance  v.  Temple,  1 
Iowa,  179.  So  mandamus  has  issued  against  officers  of  the  general  govern- 
ment, as  an  officer  of  the  cabinet  {United  States  v.  Sehurz,  102  U.  S.  -578),  and 
the  commissioner  of  patents  and  the  commissioner  of  pensions  (Butterworllt  v. 
Hoe,  112  U.  S.  50;  United  States  v.  Black,  128  U.  S.  40),  to  compel  them 
to  perform  ministerial  duties  not  .lying  in  their  pure  discretion.  So  to  the 
postmaster-general,  Kendall  v.  United  Slates,  12  Peters  (U.  S.  Sup.  Ct.),  524. 

In  like  circumstances  mandamus  issues  to  subordinate  officers  of  the  States. 
such  as  secretary  of  State,  treasurer,  comptroller,  auditor,  land  commissioner, 
tkc.  See  Merrill  on  Mandamus,  §§  103-106.  But  whether  mandamus  will 
issue  to  the  governor  of  a  State  is  a  vexed  question,  the  weight  of  authority 
inclining  to  the  negative.  Merrill  on  Mandamus,  §§  91-98;  People  v.  Smith, 
43  Illinois,  219;  92  Am.  Dec.  109. 

Mandamus  will  lie  to  a  public  corporation  to  compel  performance  of  a  pub- 
lic duty  not  due  to  the  government  as  such,  at  the  suit  of  a  private  person, 
Union  Pacific  R.  Co.  v.  Hall,  91  II.  S.  355:  as  to  compel  a  city  to  take  posse- 
sion of  a  bridge,  Pumphrey  v.  Mayor,  Sfc,  47  Maryland,  145;  28  Am.  Rep.  440. 
See  People  v.  Halsey,  37  New  York,  314  ;  State  v.  Railway,  33  New  Jersey 
Law,  110;  Ottawa  v.  People,  48  Illinois,  233. 

Mandamus  lies  against  county  officers,  as  supervisors,  in  cases  where,  al- 
though they  have  discretion,  yet  they  have  exercised  it  in  an  unconstitutional 
manner,  to  compel  them  to  perform  their  duty  in  a  legal  manner.  As  where 
they  have  made  an  illegal  division  of  voting  districts.  Baird  v.  Supervisors, 
438  New  York,  115.  The  court  there  said,  "  "Where  the  thing  to  be  done 
does  not  rest  in  discretion,  and  is  to  be  performed  by  a  public  body  or  officer, 
and  the  act  is  of  a  public  nature,  in  the  execution  of  which  the  public  is  inter- 
ested, its  performance  may  be  compelled  by  mandamus  sued  out  upon  the 
relation  of  any  citizen  of  the  community  having  an  interest  in  the  perform- 
ance of  the  act.  This  has  been  the  law  of  this  State  for  many  years.  People 
v.  Halsey,  37  N.  Y.  314.  The  thing  to  be  done  in  this  case  is  to  make  a  valid 
division  of  the  county  of  Kings  into  Assembly  districts.  All  the  citizens  are 
interested  in  the  performance  of  that  duty.  Its  performance  does  not  involve 
any  discretion.  It  must  be  done.  The  manner  of  its  performance  is  to  a 
large  extent  discretionary.  The  court  only  interferes  to  compel  the  perform- 
ance. In  this  case  we  hold  that  the  defendants  have  failed  thus  far  to  per- 
form their  duty  to  legally  divide  the  county  of  Kings  into  eighteen  Assembly 
districts.  That  duty  still  rests  upon  them,  just  the  same  as  if  they  had  never 
attempted  its  performance.  "What  they  have  done  is  utterly  void  and  of  no 
effect.  We  can  only  interfere  so  far  as  to  direct  them  to  come  together  and 
perform  their  duty,  and  make  a  constitutional  division  of  their  county." 


SECT.  V.  —  GASES    OF    LOSS    WHERE    NO    RIGHT   OF   ACTION.      829 


No.  19.  —  The  Queen  v.  Lords  Commissioners  of  the  Treasury.  —  Notes. 

Mr.  Throop  says  (Public  Officers,  §712),  "II  is  admitted,  however,  thai 
executive  officers,  other  than  the  president  and  governor,  areliable  to  private 
actions  for  misconduct  in  the  discharge  of  ministerial  duties  confined"  (con- 
fided? )  "to  them."  Citing  Adsit  v.  Brady,  I  Hill  (New  Void  ),  630  ;  40  Am. 
Dec.  305;  Unison  v.  Mayor,  9  New  York,  163;  59  Am.  Dec  526;  Robinson  v. 
Chamberlain,  -SI  New  York,  389;  90  Am.  Dec.  713.  In  the  first  case  the  super- 
intendent of  canals  was  held  liable  for  neglect  to  remove  obstructions  to 
navigation  causing  injury  to  an  individual;  in  the  second,  a  similar  holding 
was  made  in  respect  to  neglect  to  repair  a  street;  in  the  third,  the  like  was 
held  as  to  a  canal  contractor  in  respect  to  neglect  to  repair  a  canal.  See  notes 
to  these  cases  in  Am.  Dec.,  especially  90  Am.  Dec.  725-7;)'-'. 

See  generally,  note,  89  Am.  Dec.  728-742. 


( 


END    OF   VOL  L 


> 


i 


I 


i 


. 


NOTES 

ON 

ENGLISH  RULING  CASES 

CASES  IN  1  E.  R.  C. 


i 


1  E.  R.  C.  1,  GOSS  v.  WITHERS,  2  Burr,  683,  2  Ld.  Kenyon,  325. 

Right  to  make  an  abandonment. 

Cited  in  American  Ins.  Co.  v.  Ogden,  15  Wend.  532,  holding  the  inability 
of  the  master  to  procure  funds  to  make  repairs  is  a  valid  cause  for  abandon- 
ment although  the  vessel  be  in  the  port  of  destination:  Peile  v.  Merchants' 
Ins.  Co.  3  Mason,  27,  Fed.  Cas.  No.  10,905,  holding  the  owners  had  a  right 
to  abandon  a  ship  where  it  was  wrecked  on  the  rocks  and  bilged,  although 
the  underwriters  because  of  good  weather  got  it  off  with  a  loss  of  less  than 
half  the  value  of  the  ship;  Beale  v.  Pettit,  1  Wash.  C.  C.  241,  Fed.  Cas.  No. 
1,158;  Holbrook  v.  United  States,  21  Ct.  CI.  434;  Watson  v.  Insurance  Co. 
of  N.  A.  1  Binn.  47 ;  Dickey  v.  New  York  Ins.  Co.  4  Cow.  222 ;  Cossman  v. 
West,  18  N.  S.  461;  Thompson  v.  Mississippi,  M.  &  F.  Ins.  Co.  2  La.  228,  22 
Am.  Dec.  129, — considering  when  the  circumstances  will  authorize  an  abandon- 
ment of  a  vessel;  Roux  v.  Salvador,  3  Bing.  N.  C.  266,  2  Hodges,  209,  4 
Scott,  1,  7  L.  J.  Exch.  N.  S.  328,  1  Eng.  Rul.  Cas.  46,  reversing  1  Bing.  N.  C. 
526,  1  Hodges,  49,  1  Scott,  491,  4  L.  J.  C.  P.  N.  S.  156,  on  the  general  rules 
of  the  right  of  abandonment. 
—  On  arrest  or  capture. 

Cited  in  Odlin  v.  Insurance  Co.  2  Wash.  C.  C.  312,  Fed.  Cas.  No.  10,433. 
holding  it  right  to  abandon  as  for  a  total  loss  where  a  vessel  was  prevented 
from  continuing  on  her  voyage  because  of  an  arrest  under  the  embargo  law: 
Murray  v.  United  Ins.  Co.  2  Johns.  Cas.  263,  holding  the  carrying  of  a  vessel 
by  a  belligerent  into  the  port  of  a  neutral  for  adjudication  is  a  ground  for 
abandonment;  Schmidt  v.  United  Ins.  Co.  1  Johns.  249,  holding  right  to 
abandon  existed  where  the  vessel  was  not  allowed  to  leave  port  because  of 
an  active  blockade  by  armed  vessels;  Rodocanachi  v.  Elliott,  L.  R.  8  C.  P. 
649,  holding  under  a  policy  of  insurance  covering  the  entire  journey  a  right 
to  abandon  as  for  a  total  existed  where  while  goods  were  being  transported 
overland  the  point  which  the  goods  had  reached  was  surrounded  and  invested 
by  an  invading  army. 

Disapproved  in  Ruckman  v.  Merchants'  Louisville  Ins.  Co.  5  Duer,  342,  hold- 
ing that  insurance  on   a   ship  is  not  on  the  voyage  but   merely  on  the  ability 
of  the  ship  to  perform  the  voyage,  and  loss  of  the  voyage  is  not  a  valid  and 
sufficient  cause  for  abandonment. 
Notes  on  E.  R.  C— 1. 


1  E.  E.  C.  1]  NOTES  ON  ENGLISH  RULING  CASES.  2 

—  Effect  of  recapture  or  liberation. 

Cited,  in  Queen  v.  Union  Ins.  Co.  2  Wash.  C.  C.  331,  Fed.  Cas.  No.  11,505, 
holding  no  right  to  abandon  existed  where  the  vessel  was  recaptured  with  a 
view  to  salvage  and  a  salvage  of  only  one-eight  imposed,  and  the  voyage  only 
temporarily  interrupted;  Oliver  v.  Newburyport  Ins.  Co.  3  Mass.  37,  3  Am. 
Dec.  77,  holding  the  insured  was  entitled  to  recover  for  only  a  partial  loss 
where  the  ship  was  recaptured  and  sold  because  of  the  inability  of  the  master 
to  pay  the  salvage,  the  insured  abandoning  for  the  amount  received  on  the 
sale  but  refusing  to  abandon  the  ship;  Hallett  v.  Peyton,  1  Cai.  Cas.  28,  hold- 
ing an  insured  was  not  entitled  to  recover  as  for  a  total  loss  were  after  the 
capture  of  the  vessel  and  an  abandonment,  restoration  of  the  vessel  was  made ; 
United  Ins.  Co.  v.  Robinson,  2  Cai.  280,  on  right  of  insurer  when  captured 
ship  is  ransomed  or  saved;  Clendining  v.  Church,  3  Caines,  141,  holding  a 
temporary  capture  with  a  subsequent  recovery  and  arrival  at  the  port  of  destina- 
tion did  not  constitute  a  total  loss;  Post  v.  Phoenix  Ins.  Co.  10  Johns.  7i), 
holding  a  right  to  abandon  for  a  total  loss  existed  where  the  vessel  ran  into 
a  port  to  avoid  capture  and  was  there  seized  and  held  until  a  recapture, 
and  payment  of  salvage  compelled,   and  the  voyage  never  completed. 

Right  to  recover  as  for  a  total  loss. 

Cited  in  Copeland  v.  Phoenix  Ins.  Co.  1  Woolw.  278,  Fed.  Cas.  No.  3,210, 
holding  that  mere  fact  of  submersion  of  the  vessel  does  not  amount  to  a 
total  loss;  Kenny  v.  Halifax  Marine  Ins.  Co.  1  N.  S.  141,  holding  the  insured 
could  not  recover  as  for  a  total  loss  where  the  vessel  struck  on  the  rocks 
and  after  finding  it  impossible  to  get  it  off  gave  notice  of  abandonment  and 
then  during  a  heavy  gale  it  was  lifted  off  the  rocks  and  saved;  Musgrave  v. 
Mannlieim  Ins.  Co.  32  N.  S.  405,  holding  there  was  a  constructive  total  loss 
where  the  ship  was  disabled  and  being  unable  to  repair  in  time  to  carry  the 
cargo  forward  it  was  returned  to  the  shippers  and  the  ship  laid  up  for  repairs. 

Cited  in  note  in  1  Eng.  Rul.  Cas.  131,  on  criterion  of  time  in  cases  of 
abandonment  and  total  loss  under  marine  policy. 

—  As  to  cargo. 

Cited  in  Seton  v.  Delaware  Ins.  Co.  2  Wash.  C.  C.  175,  Fed.  Cas.  No.  12,675, 
holding  loss  of  a  distinct  part  of  the  cargo  which  did  not  break  up  the  voyage 
could  not  be  treated  as  total. 

Distinguished  in  Goold  v.  Shaw,  1  Johns.  Cas.  293,  holding  no  right  to  recover 
for  a  total  loss  existed  where  the  voyage  was   broken  up  by  the  vessel  being 
compelled    to    put   into    port    for    repairs    in    consequence   of    a    storm   and    the 
cargo  was  sold  to  keep  it  from  spoiling. 
Application  of  the  term  "capture"  to  marine  insurance. 

Cited  in  Dole  v.  Merchants'  Mut.  M.  Ins.  Co.  51  Me.  465,  22  Phila.  Leg.  Int. 
13;  Fifield  v.  Insurance  Co.  47  Pa.  166,  86  Am.  Dec.  523;  Dole  v.  New  England 
Mut.  M.  Ins.  Co.  6  Allen,  373, — holding  a  warranty  by  the  insured  in  a  policy 
of  insurance  that  the  vessel  should  be  free  from  capture  included  a  capture 
by  a  cruiser  of  the  so-called  Confederate  states;  Fifield  v.  Insurance  Co.  of  Pa. 
21  Phila.  Leg.  Int.  221,  holding  that  capture  by  Confederate  privateer  is 
within   clause  excepting   liability  for  loss  by  capture. 

Salvage  on  recapture. 

Cited  in  Kennedy  v.  Richer,  Smith  (N.  H.)  432,  Fed.  Cas.  No.  7,705.  on 
how  the  amount  of  salvage  fixed  on  the  recapture  of  a  ship. 


3  NOTES  ON   ENGLISH  RULING  TASKS.  |l    E.   R.  C.  23 

Right  to  question  the  validity  of  a  capture. 

Cited  in  Miller  v.  The  Resolution,  2  Dall.  1,  1  L.  ed.  263,  on  the  right  to  ques- 
tion  the  validity   of   a  capture. 
Capture  of  property  as  divesting  title. 

Cited  in  Cook  v.  Howard,  13  Johns.  276,  holding  the  title  to  a  horse  cap- 
tured during  a  battle  and  recaptured  before  the  end  of  the  conflict  was  not 
divested;  Moxon  v.  Fanny,  2  Pet.  Adm.  309,  Fed.  Cas.  No.  9,895,  on  a  capture 
as  divesting  title  to  property;  The  Curlew,  Stew.  Bice  Adm.  (N.  S. )  312,  hold- 
ing that  naval  departments  of  colonies  had  no  right  to  captured  vessels  and 
cargoes   before  condemnation. 

1  E.  R.  C.  21,  ALLEN  v.  SUGRUE,  8  Barn.  &  C.  561,  3  Mann.  &  R.  9,  7  L.  J. 
K.  B.  N.  S.  53. 

Right  to  recover  as  for  total  loss. 

Cited  in  notes  in  1  E.  R.  C.  34,  as  to  when  abandonment  may  be  made  and 
total  loss  claimed  under  marine  policy;   5  E.  R.  C.  688,  on  total  loss  by  deten- 
tion of  ship. 
Authority  to  sell  vessel. 

Cited  in  Robinson  v.  Commonwealth  Ins.  Co.  3  Sumn.  220,  Fed.  Cas.  No. 
11,949,  considering  the  exigency  that  will  authorize  the  master  to  sell  the 
vessel  to  be  such   as  would  move  a  considerate  owner   who  was  uninsured. 

1   E.   R.   C.  23,  IRVING  v.  MANNING,   1   H.  L.   C.   287,   6   C.   B.   391;    which 
affirms  the  decision  of  the  Court  of  Exchequer  Chamber  reported  in  2  C.  B. 
784;   which  affirms  the  decision  of  the  Court  of  Common  Pleas,  reported  in 
1  C.  B.  168. 
Measure  of  indemnity  on  valued  policy  of  marine  insurance. 

Cited  in  International  Nav.  Co.  v.  Atlantic  Mut.  Ins.  Co.  100  Fed.  304,  hold- 
ing upon  a  partial  loss  on  a  valued  policy  on  ship  the  cost  of  repairs,  less  the 
deduction  of  new  for  old,  is  the  measure  of  indemnity  against  the  insurers; 
Griswold  v.  Union  Mut.  Ins.  Co.  3  Blatchf.  231,  Fed.  Cas.  No.  5,840,  holding 
where  a  partial  loss  occurs  under  a  valued  policy  the  amount  of  recovery  i& 
computed  on  the  basis  of  the  valuation  in  the  policy;  Aitchison  v.  Lohre, 
14  E.  R.  C.  448,  L.  R.  4  App.  Cas.  755,  49  L.  J.  Q.  B.  N.  S.  123,  41  L.  T.  N.  S. 
323,  28  Week.  Rep.  1,  4  Asp.  Mar.  L.  Cas.  168,  holding  measure  of  indemnity, 
where  owners  elect  to  repair,  cost  or  repair,  less  one-third. 
Conclusiveness  of  policy  valuation. 

Cited    in    Michael   v.   Prussian    Nat.    Ins.    Co.    171    N.   Y.   25,    63   N.   E.    810, 
holding  that  valuation  is  conclusive  on  parties,  in  absence  of  fraud  or  mistake. 
Cited  in  note  in   14  E.  R.  C.  230,   on   what  constitutes  a  valued  policy  and 
conclusiveness   of   the   valuation. 

—  On  insured  ship. 

Cited  in  Sun  Printing  &  Pub.  Asso.  v.  Moore.  1S3  U.  S.  642,  46  L.  ed.  366, 
22  Sup.  Ct.  Rep.  240,  holding  that  parties  to  charter  party  may  stipulate 
agreed  value  of  vessel  as  liquidated  damages  for  failure  to  return  it,  and 
such  stipulation  is  conclusive,  in  absence  of  fraud  or  mistake;  The  St.  Johns, 
101  Fed.  469,  holding  where  a  vessel  is  valued  in  a  policy,  the  insured  can- 
not be  heard  to  say  that  it  had  a  larger  valuation  on  order  to  prevent  the 
insurer  from  being  subrogated  to  a  fund  recovered  as  damages  for  the  wrong- 
ful collision;   Leonard  v.  Bosch,  73  N.  J.  Eq.  438,  6S  Atl.  56.  holding  that  re- 


1  E.  R.  C.  23]         NOTES  ON.  ENGLISH  RULING  CASES.  4 

covery  in  case  of  total  loss  is  whole  amount  of  agreed  value;  Phoenix  Ins. 
Co.  v.  McLoon,  100  Mass.  475;  Howes  v.  Union  Ins.  Co.  16  La.  Ann.  235, — hold- 
ing that  agreed  valuation  of  ship  in  policy  is  conclusive  on  parties;  Barker 
v.  Janson,  14  E.  R.  C.  222,  L.  R.  3  C.  P.  303,  37  L.  J.  C.  P.  N.  S.  105,  17 
L.  T.  N.  S.  473,  16  Week.  Rep.  399,  holding  value  in  policy  conclusive,  though 
ship  had  been  injured,  unknown  to  parties,  so  that  expense  of  repairs  would 
have  exceeded  its  value  when  repaired;  The  Main,  13  E.  R.  C.  681,  [1894] 
P.  320,  63  L.  J.  Prob.  N.  S.  69,  70  L.  T.  N.  S.  247,  6  Reports,  775,  7  Asp. 
Mar.  L.  Cas.  424,  holding  valuation  conclusive  though  amount  actually  at  risk 
turns  out  to  be  very  much  less  than  was  actually  intended  at  time  of  mak- 
ing policy. 

Cited  in  note  in  14  E.  R.  C.  232,  on  conclusiveness  on  parties  of  value  of  ship 
as  stated  in  polity. 
Right  to  recover  as  for  a  total  loss. 

Cited  in  Northwestern  Mut.  L.  Ins.  Co.  v.  Rochester  German  Ins.  Co.  85 
Minn.  48,  56  L.R.A.  108,  88  N.  W.  265,  holding  loss  not  total,  if  remnant 
of  building  left  standing  above  foundation  is  safely  adapted  for  use  as  basis 
upon  which  to  restore  building;  Milwaukee  Mechanics'  Ins.  Co.  v.  Russell, 
65  Ohio  St.  230,  56  L.R.A.  159,  62  N.  E.  33S,  holding  that  refusal  of  insured 
to  permit  insurer  to  rebuild  is  no  defense  to  recovery  of  total  loss;  Ruck- 
man  v.  Merchants'  Louisville  Ins.  Co.  5  Duer,  342,  holding  it  a  constructive 
total  loss,  when  disabled  vessel  is  in  port  of  necessity  and  cost  of  repairing  will 
exceed  moiety  of  her  value;  Boardman  v.  Boston  Marine  Ins.  Co.  146  Mass.  442, 
16  N.  E.  26,  upholding  claim  for  total  loss  of  freight,  on  loss  of  more  than 
half  of  cargo  of  coal  in  specie,  though  actual  freight  lost  is  less  than  one 
half  the  value  of  freight;  Murray  v.  Great  Western  Ins.  Co.  72  Hun,  282,  25 
N.  Y.  Supp.  414,  holding  that  constructive  total  loss  takes  place  when  destruc- 
tion of  ship  is  rendered  highly  probable,  or  the  privation  of  it  is  such  that 
its  recovery  is  either  exceedingly  doubtful  or  too  expensive  to  be  worth  the 
attempt;  Brady  v.  Northwestern  Ins.  Co.  11  Mich.  425  (dissenting  opinion)  ; 
Royal  Ins.  Co.  v.  Mclntyre,  90  Tex.  170,  35  L.R.A.  672,  59  Am.  St.  Rep.  797, 
37  S.  W.  1068, — considering  the  right  to  recover  as  for  a  total  loss;  Gerow 
v.  British  American  Assur.  Co.  16  Can.  S.  C.  524  (affirming  27  N.  B.  513),  hold- 
ing not  constructive  total  loss,  where  cost  of  repairs  did  not  amount  to  half 
of  declared  value,  allowing  deduction  of  one-third  new  for  old;  Phoenix  Ins. 
Co.  v.  Anchor  Ins.  Co.  4  Ont.  Rep.  524,  holding  stranding  of  vessel  no  ground 
for  abandoning  as  for  total  loss,  where  injuries  were  trifling  and  no  difficulty 
was  experienced  in  getting  vessel  off;  Morton  v.  Patillo,  9  N.  S.  17,  holding  that 
master  might  abandon  vessel  and  recover  as  for  total  loss,  where  cost  of  re- 
pairing would  amount  to  more  than  vessel  was  worth. 

Cited  in  notes  in  1  E.  R.  C.  34,  as  to  when  abandonment  may  be  made  and 
total  loss  claimed  under  marine  policy;  5  E.  R.  C.  688,  on  total  loss  by  deten- 
tion of  ship. 

The  decision  of  the  Court  of  Exchequer  Chamber  was  cited  in  King  v.  West- 
ern Assur.  Co.  7  U.  C.  C.  P.  300,  holding  that  where  owners  of  vessel  which  was 
stranded  gave  notice  of  abandonment  and  circumstances  justified  abandonment 
verdict  for  total  loss  was  proper;  Harkley  v.  Provincial  Ins.  Co.  18  U.  C.  C.  P. 
335,  holding  that  whether  loss  is  to  be  considered  total  loss  depends  on  fact  of 
whether  vessel,  as  injured,  is  useless  to  owner  unless  at  expense  that  no  prudent 
man,  if  uninsured,  would  incur;  Crawford  v.  St.  Lawrence  Ins.  Co.  8  U.  C.  Q. 
B.  135,  holding  that  where  mortgagee  had  policy  on  vessel  and  loss  was  actual 


5  NOTES  ON    ENGLISfl    Rl  LING  CASKS.  [1   E.  R.  C.  27 

total  loss,  verdict  for  plaintiff  could  not  be  disturbed  where  vessel  was  abandoned 
by  mortgagor. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Wallerstein  v.  Co- 
lumbian Ins.  Co.  44  N.  Y.  204,  4  Am.  Eep.  664,  upholding  right  to  recover  as  for 
total  loss,  though  part  of  goods  may  be  brought  into  port  in  specie,  if  right  to 
abandon  is  exercised  during  .continuance  of  peril  and  there  is  total  loss  of  value 
to  owner;  Corbett  v.  Spring  Garden  Ins.  Co.  155  N.  Y.  389,  41  L.R.A.  318,  50 
N.  E.  282,  denying  recovery  for  total  loss,  Avhere  roof  and  interior  are  burned, 
but  foundation  and  walls  remain  and  building  can  be  repaired  for  one  third  its 
value. 

1  E.  R.  C.  27,  FARNWORTH  v.  HYDE,  L.  R.  2  C.  P.  204,  15  L.  T.  N.  S.  395,  15 
Week.  Rep.  340,  36  L.  J.  C.  P.  N.  S.  33,  affirming  the  decision  of  the  Court  of 
Common  Pleas  reported  in  18  C.  B.  N.  S.  835,  11  Jur    N.  S.  349,  12  L.  T. 
N.  S.  231,  13  Week.  Rep.  613,  34  L.  J.  C.  P.  N.  S.  207. 
What  will  constitute  a  constructive  total  loss  of  a  vessel. 

Cited  in  Cossman  v.  West,  L.  R.  13  App.  Cas.  160,  57  L.  J.  P.  C.  N.  S.  17,  58 
L.  T.  N.  S.  122,  0  Asp.  Mar.  L.  Cas.  233,  holding  a  vessel  is  a  total  loss  within 
the  meaning  of  a  policy  of  marine  insurance  where  the  vessel  coming  into  the 
hands  of  salvors  as  a  derelect  is  sold  by  a  court  of  competent  jurisdiction;  Walson 
v.  Mercantile  Marine  Ins.  Co.  9  N.  S.  396,  holding  there  could  be  no  recovery  as 
for  a  total  loss  where  the  cargo  was  damaged  during  a  storm  and  sold  before 
reaching  the  port  of  destination  where  it  did  not  appear  conclusively  that  the 
cargo  might  not  have  been  sent  to  point  of  destination  at  an  expense  less  than  its 
probable  value  there. 

Cited  in  note  in  1  E.  R.  C.  32,  as  to  when  abandonment  may  be  made  and 
total  loss  claimed  under  marine  policy. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Providence  Wash- 
ington Ins.  Co.  v.  Corbett,  9  Can  S.  C.  256,  holding  no  right  existed  to  recover 
as  for  a  total  loss  where  the  vessel  was  stranded  and  the  master  gave  notice  of 
abandonment  which  was  refused  whereupon  he  sold  the  vessel  which  the  pur- 
chaser easily  floated;  Gallagher  v.  Taylor,  5  Can.  S.  C.  368  (reversing  13  N.  S. 
279),  refusing  recovery  for  total  loss,  no  notice  of  abandonment  being  given, 
where  master  sold  vessel  without  attempting  to  get  it  off  and  purchaser  got  it 
off  and  floated  it. 

—  Constructive  total  loss  of  cargo. 

Cited  in  Heard  v.  Prince  Edward  Island  Marine  Ins.  Co.  1  Has.  &  War  (Pr. 
Edw.  Isl.)  381,  holding  there  could  be  no  recovery  as  for  a  total  loss  where  a 
vessel  was  caught  in  the  ice  and  the  cargo  of  fish  damaged  and  the  voyage  aban- 
doned and  the  cargo  sold,  and  the  fish  dried  and  shipped  by  the  purchaser,  the 
injury  being  slight;  Singer  Mfg.  Co.  v.  Western  Assur.  Co.  Rap.  Jud.  Quebec  10 
S.  C.  379,  holding,  where  the  articles  composing  a  cargo  are  under  the  policy 
valued  separately,  insured  may  recover  as  for  a  total  loss  for  articles  damaged 
and  worthless  when  vessel  was  stranded  and  returned  to  port  and  cargo  was  dis- 
charged; Browning  v.  Provincial  Ins.  Co.  L.  R.  5  P.  C.  263,  28  L.  T.  N.  S.  853,  21 
Week.  Rep.  587,  2  Asp.  Mar.  L.  Cas.  35,  holding  the  loss  of  a  cargo  of  flour  did 
not  become  total,  where  part  of  it  was  saved,  until  it  was  found  impossible  to 
carry  to  destination  and  it  had  to  be  sold. 

Cited  in  note  in  5  E.  R.  C.  6S8,  on  total  loss  by  detention  of  ship. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Musgrave  v.  Mannheim 
Ins.  Co.  32  N.  S.  485,  holding  a  recovery  might  be  had  for  a  total  loss  where  the 


1  E.  R.  C.  27]  NOTES  OX  ENGLISH  RULING  CASES.  6 

vessel  was  disabled  and  the  cargo  was  of  such  a  nature  as  to  require  immediate 
shipment,  which   was  done  by  another  vessel,  the  former  boat  going  in  for  re- 
pairs. 
Recovery  of  freight  on  the  constructive  total  loss  of  a  vessel  and  cargo. 

Cited  in  Cogan  v.  Commercial  Mut.  M.  Ins.  Co.  135  Mass.  328,  holding  an  in- 
sured was  entitled  to  recover  the  expenses  of  shipping  the  quarter  catch  home 
where  there  was  a  constructive  total  loss  of  the  vessel  at  foreign  port,  but  not 
the  freight  paid  for  carrying  it  to  the  home  port  nor  the  cost  of  insurance  thereon. 
Duty  of  master  of  wrecked  vessel  with  regard  to  the  cargo. 

Cited  in  Edward  v.  Gurney,  37  U.  C.  Q.  B.  324,  on  duty  of  master  with  regard 
to  his  cargo  where  his  vessel  is  irreparably  damaged. 
Iiiahility  of  cargo  for  general  average. 

Cited  in  Chaffey  v.  Schooley,  40  TJ.  C.  Q.  B.  165,  holding  the  owner  of  a  cargo 
was  not  liable  for  a  share  of  the  general  average  it  appearing  the  vessel  was  un- 
seaworthy  at  the  beginning,  during  and  at  the  .end  of  the  voyage. 
Liability  of  owner   of  cargo   for   freight. 

Cited  in  Anchor  Ins.  Co.  v.  Phoenix  Ins.  Co.  30  U.  C.  C.  P.  570  (dissenting  opin- 
ion), on  liability  of  owner  of  cargo  for  freight  where  cargo  was  not  sent  to  port 
of  destination. 
Right  of  master  to  sell  vessel. 

Cited  in  Churchill  v.  Nova  Scotia  M.  Ins.  Co.  28  N.  S.  75,  holding  that  master 
is  justified  in  selling  vessel  beached  to  prevent  her  sinking  on  island  where  she 
could  not  be  repaired. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Driscoll  v.  Millville  M. 
Ins.  Co.  23  N.  B.  160,  on  nature  of  necessity  which  will  justify  master  in  selling 
vessel. 
Necessity  of  giving  notice  of  abandonment. 

Cited  in  Rankin  v.  Potter,  L.  R.  6  H.  L.  83,  42  L.  J.  C.  P.  N.  S.  169,  29  L. 
T.  N.  S.  142,  22  Week.  Rep.  1,  2  Asp.  Mar.  L.  Cas.  65,  1  Eng.  Rul.  Cas.  71,  hold- 
ing no  notice  of  abandonment  to  the  underwriters  on  freight  was  necessary  where 
the  vessel  being  injured  on  the  outward  voyage  the  cost  of  repairs  exceeded  the 
value  of  the  ship  when  repaired  and  the  freight  to  be  earned. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  McGhee  v.  Phoenix  Ins. 
Co.  28  N.  B.  45,  holding  notice  of  an  abandonment  was  not  necessary  to  recover 
as  for  a  total  loss,  the  evidence  being  sufficient  to  show  that  the  vessel  was  a 
total  wreck  as  she  lay  on  the  shore;  O'Leary  v.  Pelican  Ins.  Co.  29  N.  B.  510,  on 
the  necessity  of  giving  notice  of  abandonment  before  selling  the  vessel;  Harkley 
v.  Provincial  Ins.  Co.  18  U.  C.  C.  P.  335,  on  necessity  of  giving  notice  of  abandon- 
ment; Kaltenbach  v.  Mackenzie,  L.  R.  3  C.  P.  Div.  467,  48  L.  J.  C.  P.  N.  S.  9, 
39  L.  T.  N.  S.  215,  26  Week.  Rep.  844,  4  Asp.  Mar.  L.  Cas.  39,  holding  notice  of 
abandonment  was  necessary  in  order  to  recover  for  a  constructive  total  loss 
where  the  assured  receives  information  that  the  vessel  is  in  imminent  danger  of 
becoming  a  total  loss. 
Kvidence  of  abandonment. 

Cited  in  Rankin  v.  Potter,  L.  R.  6  H.  L.  83,  2  Asp.  Mar.  L.  Cas.  65,  29  L.  T.  N. 
S.  142.  22  Week.  Rep.  1,  42  L.  J.  C.  P.  N.  S.  169,  on  sale  of  wreck  as  evidence  of 
election  to  abandon. 

1  E.  R.  C.  37,  FLEMING  v.  SMITH,  1  H.  L.  Cas.  513,  6  Bell,  278,  affirming  the 
decisions  of  the  Court  of  Session,  reported  in  4  Sc.  Sess.  Cas.  2d  Series,  631. 


7  NOTES  ON  ENGLISH  RULING   CASKS.         [1  E.   R.  ('.  46 

Necessity  of  giving  notice  of  abandonment. 

Cited  in  Phoenix  Ins.  Co.  v.  McGhee,  18  Can.  S.  C.  Gl  (affirming  28  X.  I'..  45), 
holding  on  facts  the  evidence  of  the  total  wreck  of  the  vessel  was  such  as  not 
to  require  any  notice  of  abandonment;  The  Livingstone,  122  Fed.  278,  on  when 
notice  of  abandonment  is  essential;  Rankin  v.  Potter,  L.  R.  6  II.  L.  83,  1  Eng. 
Rul.  Cas.  70,  42  L.  J.  C.  P.  N.  S.  169,  29  L.  T.  X.  S.  142,  22  Week.  Rep.  1,  2 
Asp.  Mar.  L.  Cas.  65,  holding  notice  of  abandonment  not  necessary  where  the  cost 
of  repairs  exceeded  the  value  of  the  vessel  after  repairing  and  the  value  of  the 
freight  to  be  earned  and  that  there  was  no  election  where  the  omitted  notice 
would  have  been  useless 
Right  of  abandonment. 

Cited  in  Morton  v.  Patillo,  9  X.  S.  17,  holding  a  master  might  abandon  a  vessel 
where  the  cost  of  repairing  would  amount  to  more  than  the  vessel  was  worth. 

1  E.  R.  C.  46,  ROUX  v.  SALVADOR,  3  Bing.  X.  C.  266,  2  Hodges,  209,  4  Scott,  1, 
7  L.  J.  Exch.  X.  S-  328,  reversing  the  decision  of  the  Court  of  Common  Pleas, 
reported  in  1  Bing.  X.  C.  526,  1  Hodges,  49,  1  Scott,  491,  4  L.  J.  C.  P.  X.  S. 
156. 
Total   loss,   what  constitutes. 

Cited  in  Wallerstein  v.  Columbian  Ins.  Co.  3  Robt.  528  (dissenting  opinion), 
on  what  constitutes  a  total  loss;  Crosby  v.  Xew  York  Mut.  Ins.  Co.  5  Bosw.  369, 
holding  that  the  loss  is  in  its  nature  total  to  him  who  has  no  means  of  recovering 
his  property  whether  his  inability  arises  from  its  annihilation  or  any  insuperable 
obstacle;  Sherlock  v.  Globe  Ins.  Co.  1  Cin.  Sup.  Ct.  Rep.  193,  on  when  a  recovery 
may  be  had  as  for  a  total  loss  of  a  vessel;  Phognix  Ins.  Co.  v.  McGhee,  IS  Can. 
S.  C.  61  (affirming  28  X.  B.  45),  holding  a  recovery  might  be  had  for  a  total  loss 
where  the  vessel  was  driven  on  the  rocks  and  the  tug  which  came  to  her  assistance 
refused  to  make  the  attempt  to  release  her,  although  no  notice  of  abandonment 
given;  Asfar  v.  Blundell  [1S95]  2  Q.  B.  196,  [1896]  1  Q.  B.  123,  64  L.  J.  Q.  B. 
X.  S.  573,  73  L.  T.  X.  S.  30,  15  Reports,  481,  65  L.  J.  Q.  B.  X.  S.  138,  73  L.  T.  X. 
S.  648,  44  Week.  Rep.  130,  8  Asp.  Mar.  L.  Cas.  106,  holding  there  had  been  a  total 
loss  under  a  policy  insuring  the  profit  on  the  charter  freight  where  so  much  of  the 
cargo  was  damaged  that  the  freight  payable  was  less  than  the  charter  freight; 
Cossman  v.  West,  L.  R.  13  App.  Cas.  160,  57  L.  J.  P.  C.  X.  S.  17,  58  L.  T.  X.  S. 
122,  6  Asp.  Mar.  L.  Cas.  233,  holding  there  was  a  total  loss  of  a  vessel  and  cargo 
where  after  its  abandonment  by  the  crew  it  was  found  by  salvors  and  brought 
into  port  and  sold;  Potter  v.  Rankin,  L.  R.  5  C.  P.  341,  1  Eng.  Rul.  Cas.  70,  L. 
R.  3  C.  P.  562,  39  L.  J.  C.  P.  X.  S.  147,  holding  there  was  no  total  loss  of  a  right 
to  earn  freight  where  the  vessel  was  not  impossible  of  repair  but  it  was  rendered 
difficult  because  of  the  expense. 
—  Enforced  sale  consequent  on  peril  insured  against. 

Cited  in  Anchor  Marine  Ins.  Co.  v.  Keith,  9  Can.  S.  C.  483,  holding  a  recovery 
might  be. had  for  a  total  loss  where  a  vessel  being  damaged  by  striking  on  a  reef 
was  obliged  to  put  back  to  port  where  there  being  no  facilities  for  repairs  and 
being  unable  to  take  her  to  a  port  where  repairs  might  be  made  the  master 
stripped  the  vessel  and  sold  at  auction;  Providence  Washington  Ins.  Co.  v. 
Corbett,  9  Can.  S.  C.  256,  holding  there  could  be  no  recovery  as  for  a  total  loss 
where  vessel  was  driven  on  shore  and  then  sold  by  the  master  without  attempting 
to  get  it  off  and  it  was  easily  floated  off  by  the  purchaser  without  any  serious 
damage;  Stringer  v.  English  &  S.  M.  Ins.  Co.  L.  R.  4  Q.  B.  676,  38  L.  J.  Q.  B. 


1  E.  R.  C.  46]  NOTES  ON  ENGLISH  RULING  CASES.  8 

N.  S.  321,  holding  where  a  vessel  which  is  seized  as  a  prize  is  sold  by  order  of  the 
prize  court  it  constitutes  a  total  loss. 

—  Cargo  sold  or  cast  away  as  damaged. 

Cited  in  Parsons  v.  Manufacturers'  Ins.  Co.  16  Gray,  463,  holding  no  right  to 
recover  for  a  total  loss  where  the  vessel  was  damaged  and  put  into  port  for  re- 
pairs and  part  of  the  cargo  being  damaged  it  was  thrown  overboard  and  the  re- 
mainder reshipped  by  another  vessel;  Wallerstein  v.  Columbian  Ins.  Co.  44  N.  Y. 
204,  4  Am.  Rep.  664,  holding  there  may  be  a  recovery  for  a  total  loss  although 
some  of  the  goods  may  be  brought  into  port  in  specie,  the  right  to  abandon  being 
exercised  during  the  continuance  of  the  peril ;  Insurance  Co.  of  N.  A.  v.  Svendsen, 
77  Fed.  220,  on  the  right  to  recover  as  for  the  total  loss  of  a  cargo;  Watson  v. 
Mercantile  Marine  Ins.  Co.  9  N.  S.  396,  denying  recovery  as  for  total  loss,  when 
cargo  was  damaged  during  storm  and  sold  before  reaching  destination,  where 
cargo  might  have  been  sent  to  destination  at  expense  less  than  its  probable  value 
there;  Saunders  v.  Baring,  34  L.  T.  N.  S.  419,  3  Asp.  Mar.  L.  Cas.  133,  holding 
a  cargo  of  coal  to  be  a  total  loss  where  it  has  become  so  damaged  by  sea  as  to 
make  an  immediate  sale  necessary;  Browning  v.  Provincial  Ins.  Co.  L.  R.  5  P.  C. 
263,  28  L.  T.  N.  S.  853,  21  Week.  Rep.  587,  2  Asp.  Mar.  L.  Cas.  35,  holding  there 
was  a  total  loss  of  a  cargo  where  although  part  of  it  was  saved  it  was  in  such  a 
condition  that  an  immediate  sale  was  necessary  and  it  could  not  be  carried  to 
its  place  of  destination. 

Disapproved  in  Depeyster  v.  Sun  Mut.  Ins.  Co.  17  Barb.  306,  holding  there  could 
be  no  recovery  for  the  total  loss  of  a  cargo  of  hides  where  the  greater  part  were 
damaged  by  sea  water,  and  destroyed  by  putrefaction,  and  the  remainder  sold 
in  a  port  of  necessity  as  damaged  hides. 

—  Perishables  rendered  incapable  of  transportation  to  destination. 
Cited  in  De  Peyster  v.  Sun  Mut.  Ins.  Co.  19  N.  Y.  272,  75  Am.  Dec.  331,  hold- 
ing a  recovery  for  a  total  loss  may  be  had  for  perishable  articles  where  so  dam- 
aged as  incapable  of  being  transported  to  port  of  destination;  Tudor  v.  New 
England  Mut.  M.  Ins.  Co.  12  Cush.  554,  holding  there  might  be  a  recovery  for 
a  total  loss  on  a  cargo  of  ice  where  the  vessel  was  compelled  to  put  into  port 
having  sprung  a  leak  during  a  storm  and  the  cargo  having  to  be  removed  to 
examine  and  repair  the  vessel  was  sold  and  the  voyage  abandoned;  Williams  v. 
Kennebec  Mut.  Ins.  Co.  31  Me.  455,  on  right  to  recover  for  a  total  loss  of  perish- 
able goods;  Fairbanks  v.  Union  Marine  Ins.  Co.  3  N.  S.  67,  holding  total  loss, 
where  cargo  of  salt  fish  was  injured  by  salt  water  and  vessel  so  damaged  that 
she  could  not  reach  destination  before  fish  would  be  spoiled. 

—  Total  loss  of  voyage  or   freight. 

Cited  in  Lord  v.  Neptune  Ins.  Co.  10  Gray,  109,  holding  the  insurers  of  the 
freight  of  a  ship  are  not  liable  for  a  total  loss  where  no  total  loss  of  the  ship 
occurs  although  obliged  to  put  into  port  for  repairs  where  the  cargo  is  sold  it 
being  damaged  for  more  than  half  its  value;  Anchor  Ins.  Co.  v.  Phoenix  Ins.  Co. 
30  U.  C.  C.  P.  570  (dissenting  opinion),  on  shipper  as  being  liable  for  the  freight 
if  the  goods  are  capable  of  being  delivered  at  the  point  of  destination  in  specie; 
Musgrave  v.  Mannheim  Ins.  Co.  32  N.  S.  405,  upholding  recovery  for  total  loss, 
where  vessel  was  disabled  and  cargo  required  immediate  shipment,  which  was 
done  by  another  vessel,  former  boat  going  in  for  repairs;  Movvat  v.  Boston  Marine 
Ins.  Co.  33  N.  B.  109,  holding  that  total  destruction  of  part  of  cargo,  insured  in 
bulk,  is  not  total  loss  of  part. 

Distinguished  in  Ogden  v.  General  Mut.  Ins.  Co.  2  Duer.  204,  holding  that  where 
a  part  of  the  cargo  had  been  jettisoned  and  another  part  injured  by  the  seas,  and 


9  NOTES  ON  ENGLISH  RULING  CASES.  [1  E.  R.  C.  46 

the  ship  having  returned  to  its  port  of  clearance,  and  the  remainder  of  the  goods 
forwarded  in  another  boat,  there  was  no  total  loss  of  the  freight. 

The  decision  of  Court  of  Common  Pleas  was  cited  in  Hugg  v.  Augusta  Ins.  & 
Bkg.  Co.  7  How.  595,  12  L.  ed.  834,  holding  a  recovery  might  be  had  upon  an 
insurance  on  freight  where  because  of  storms  the  vessel  was  put  into  port  in  a 
leaking  condition  with  its  cargo  of  perishable  goods  in  such  bad  condition  that 
the  master  sold  as  he  could  not  carry  forward  and  no  vessel  was  procurable  to 
do  so. 
Recovery  for  total  loss  without  abandonment. 

Cited  in  Poole  v.  Protection  Ins.  Co.  14  Conn.  47,  on  when  an  abandonment  not 
essential  to  right  to  recover  as  for  a  constructive  total  loss;  Crosby  v.  New  York 
Mut.  Ins.  Co.  19  How.  Pr.  312;  Merchants'  &  M.  Ins.  Co.  v.  Duffield,  2  Handy 
(Ohio)  122, — on  abandonment  as  essential  to  right  of  recovery  under  policy  of 
marine  insurance. 

Cited  in  note  in  1  Eng.  Rul.  Cas.  46,  111,  on  right  to  claim  total  loss  under 
marine  policy  without  abandonment. 

The  decision  of  Court  of  Common  Pleas  was  cited  in  Smith  v.  Manufacturers 
Ins.  Co.  7  Met.  448,  on  when  an  abandonment  is  essential  to  the  right  to  recover 
for  a  total  loss;  Gallagher  v.  Taylor,  13  N.  S.  279,  holding  a  recovery  might  be 
had  for  a  total  loss  without  notice  of  abandonment  where  the  injuries  were  of 
such  a  nature  that  the  survey  showed  that  the  vessel  could  not  be  repaired  so  as 
to  be  made  tight. 

—  Perishables  or  wreck  beyond  possibility  of  saving. 

Cited  in  Williams  v.  Cole  &  B.  Ins.  Co.  16  Me.  207,  holding  the  damage  to 
perishables  being  of  such  a  nature  as  to  render  them  a  nuisance  a  recovery  for 
a  total  loss  might  be  had  without  an  abandonment;  McCall  v.  Sun  Mut.  Ins.  Co. 
66  N.  Y.  505,  holding  an  abandonment  is  not  essential  to  recover  for  a  total  loss 
where  the  vessel  is  injured  and  pronounced  a  complete  wreck  by  the  surveyors 
whereupon  the  master  sold  her  at  public  auction. 
Total  loss  and  constructive  total  loss  distinguished. 

Cited   in    Providence   Washington   Ins.   Co.   v.   Corbett,    9   Can.   S.   C.   256,   dis- 
tinguishing between  the  right  to  recover  for  a  total  loss  and  a  constructive  total 
loss. 
Right  to  recover  as  for  an  average  loss. 

Cited  in  The  Alsace  Lorraine  [ 1S93]  P.  209,  62  L.  J.  Prob.  N.  S.  107,  1  Reports, 
632,  69  L.  T.  N.  S.  201,  42  Week.  Rep.  112,  7  Asp.  Mar.  L.  Cas.  362,  holding  there 
could  be  no  recovery  for  a  particular  average  where  the  ship  was  stranded  where 
at  time  the  cargo  was  on  shore,  part  for  the  purpose  of  being  sold  as  damaged 
and  the  remainder  awaiting  the  repairs  of  the  ship. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  London  Assur.  Co. 
v.  Companhia  de  Moagens,  167  U.  S.  149,  42  L.  ed.  ]13,  17  Sup.  Ct.  Rep.  785 
(affirming  68  Fed.  247,  15  C.  C.  A.  379,  2S  U.  S.  App.  439),  holding  where  a  vessel 
was  injured  by  a  collision  while  proceeding  out  to  sea  and  during  a  storm  shipped 
water  as  a  result  of  the  collision,  so  as  to  damage  the  cargo  and  compel  the 
vessel  to  put  into  port  and  a  sale  of  the  cargo  made  a  recovery  might  be  had  for 
a  particular  average;  Thames  &  M.  M.  Ins.  Co.  v.  Pitts  [1893]  1  Q.  B.  476,  5 
Reports,  168,  68  L.  T.  N.  S.  524,  41  Week.  Rep.  346,  7  Asp.  Mar.  L.  Cas.  302,  on 
the  right  of  insured  to  recover  in  respect  to  an  average  loss. 
Right  of  abandonment  of  damaged  vessel  or  cargo. 

Cited  in  Fulton  Ins.  Co.  v.  Goodman,  32  Ala.  10S,  holding  a  right  to  abandon  a 


1  E.  R.  C.  46]  NOTES  ON  ENGLISH  RULING  CASES.  10 

vessel  for  a  constructive  total  loss  where  it  sunk  from  striking  a  snag,  where  the 
general  opinion  was  that  it  could  not  be  raised  although  afterwards  raised  at  a 
cost  of  less  than  half  its  value;  Phoenix  Ins.  Co.  v.  Anchor  Ins.  Co.  4  Ont.  Rep. 
524,  holding  the  stranding  of  a  vessel  no  grounds  for  abandoning  as  for  a  total 
loss  where  the  injuries  were  of  a  trifling  nature  and  no  difficulty  was  experienced 
in  getting  the  vessel  off;  Singer  Mfg.  Co.  v.  Western  Assur.  Co.  Rap.  Jud.  Quebec 
10  C.  S.  379,  holding  where  a  lot  of  sewing  machines  were  valued  separately  in 
the  policy  of  insurance,  the  insured  may  abandon  such  of  them  as  are  declared  by 
a  survey  to  be  a  total  loss:  Meagher  v.  ^tna  Ins.  Co.  20  U.  C.  Q.  B.  607,  holding 
that  test  of  right  to  abandon  vessel  is  whether  under  similar  circumstances  pru- 
dent men  would  think  it  worth  while  to  attempt  to  save  and  repair  vessel :  Mor- 
ton v.  Patillo,  9  N.  S.  17,  holding  that  master  might  abandon  vessel,  where  cost 
of  repairing  would  amount  to  more  than  vessel  was  worth. 
—  Perishable  cargo. 

Cited  in  Delaware  Ins.  Co.  v.  Winter,  38  Pa.  176,  holding  a  right  to  abandon 
for  a  total  loss  existed  where  vessel  with  cargo  of  perishable  goods  was  obliged 
by  storms  to  put  back  to  port  with  its  cargo  in  such  a  condition  that  it  could  not 
be  shipped  in  whole  or  in  part  to  port  of  destination. 
Necessity  that  notice  of  abandonment  be  given. 

Cited  in  Harkley  v.  Provincial  Ins.  Co.  IS  U.  C.  C.  P.  335,  holding  plaintiff  could 
not  recover  for  a  total  loss,  no  notice  of  abandonment  being  given,  where  the 
vessel  was  driven  on  the  rocks  but  floated  off  without  assistance  and  was  then 
lost  through  plaintiff's  negligence;  O'Leary  v.  Pelican  Ins.  Co.  29  N.  B.  510,  on 
necessity  of  giving  notice  of  abandonment  before  selling  vessel;  Rankin  v.  Potter, 
L.  R.  6H.  L.  83,  42  L.  J.  C.  P.  N.  S.  169,  29  L.  T.  N.  S.  142,  22  Week.  Rep.  1, 

2  Asp.  Mar.  L.  Cas.  65,  1  Eng.  Rul.  Cas.  70,  holding  no  notice  of  abandonment  was 
necessary  to  the  underwriters  on  freight  where  the  cost  of  repairs  of  the  vessel 
would  exceed  the  value  of  the  vessel  after  repairing  with  the  value  of  the  freight 
to  be  earned;  Trinder,  A.  &  Co.  v.  Thames  &  M.  M.  Ins.  Co.  [1898]  2  Q.  B.  114, 
67  L.  J.  Q.  B.  N.  S.  666,  78  L.  T.  N.  S.  485,  46  Week.  Rep.  561,  8  Asp.  Mar.  L. 
Cas.  373,  3  Com.  Cas.  123,  14  Times  L.  R.  386,  on  the  necessity  of  giving  notice 
of  abandonment  upon  a  constructive  loss;  Fleming  v.  Smith,  1  E.  R.  C.  37,  1  H. 
L.  Cas.  513,  holding  notice  of  abandonment  necessary,  where  ship  is  driven  into 
port  and  captain  writes  owners  that  ship  can  be  repaired. 

Distinguished  in  Kaltenbach  v.  Mackenzie,  L.  R.  3  C.  P.  Div.  467,  39  L.  T.  N.  S. 
215,  26  Week.  Rep.  844,  48  L.  J.  C.  P.  N.  S.  9,  4  Asp.  Mar.  L.  Cas.  39,  holding 
notice  of  abandonment  necessary  in  order  to  recover  for  a  constructive  total  loss 
where  the  assured  receives  reliable  information  that  the  vessel  is  in  imminent 
danger  of  becoming  a  total  wreck. 
Subrogation  of  insurer  to  cause  of  action  accruing  to  insured. 

Distinguished  in  Clark  v.  Wilson,  103  Mass.  219,  4  Am.  Rep.  532,  on  the  right 
of  insurers  to  maintain  an  action  to  recover  damages  the  right  to  which  had 
accrued  to  assured  before  abandonment. 

Construction  of  use  of  words  "loss*'  and   '•average"   in  policy  of  marine 
insurance. 

Cited  in  Hall  v.  Rising  Sun  Ins.  Co.  1  Disney  (Ohio)  308,  holding  the  word 
loss  or  average  in  clause  of  marine  insurance  policy  is  not  confined  to  sea  dam- 
ages but  extends  to  charges  fixed  upon  the  property  by  reason  of  the  accident 
itself. 


11  NOTES  <)N   ENGLISH    RULING   CASKS.         |l    E.  R.  C.  71 

1  E.  II.  C.  71,  RANKIN  v.  TOTTER,  L.  R.  G  H.  L.  83,  2  Asp.  Mar.  L.  Cas.  65, 
29  L.  T.  N.  S.  142,  22  Week.  Rep.  1,  42  L.  J.  C.  P.  N.  S.  169,  affirming  the 
decision  cf  the  Court  of  Exchequer  Chamber,  reported  in  L.  R.  5  C.  P.  341, 
o9  L.  J.  C.  P.  N.  S.  147,  which  reverses  the  decision  of  the  Court  of  Common 
Pleas,  reported  in  L.  R.  3  C.  P.  562. 
Necessity  of  making-  an  abandonment. 

Cited  in  The  Burlington,  73  Fed.  258,  holding  an  abandonment  not  necessary 
to  vest  title  to  the  wrecked  vessel  in  the  insurer  where  the  insured  has  been 
paid  for  a  total  loss;  Taber  v.  China  Mut.  Ins.  Co.  131  Mass.  239,  holding  an 
abandonment  necessary  where  the  vessel  although  a  constructive  total  loss  was  in 
a  safe  port  and  in  no  danger  of  further  injury. 
Right  to  abandon. 

Cited  in  Providence  Washington  Ins.  Co.  v.  Corbett,  9  Can.  S.  C.  256,  holding 
an  abandonment  and  sale  by  the  master  of  a  stranded  vessel  was  not  justified 
where  it  appeared  that  the  master  made  no  attempt  to  get  her  off  and  that  the 
purchaser  floated  her  immediately;  Barrs  v.  Merchants  M.  Ins.  Co.  26  N.  B.  339, 
on  the  right  to  make  an  abandonment. 
Right  to  recover  as  for  a  total  loss. 

Cited  in  Driscoll  v.  Millville  M.  Ins.  Co.  23  N.  B.  160,  holding  the  owner  of  a 
vessel  was  entitled  to  recover  for  a  total  loss  of  freight  where  the  vessel  is 
damaged  and  the  surveyors  advise  an  abandonment,  which  is  made,  the  cargo  being 
reshipped  by  another  boat;  Phcenix  Ins.  Co.  v.  Anchor  Ins.  Co.  4  Ont.  Rep.  524. 
holding  no  right  existed  to  treat  a  vessel  as  a  total  loss  where  the  vessel  was 
floated  and  the  cost  of  salvage  and  repairs  was  less  than  the  value  of  the  vessel ; 
Anchor  Marine  Ins.  Co.  v.  Keith,  9  Can.  S.  C.  483,  holding  that  where  vessel  was 
so  injured  that  she  could  not  be  taken  into  port  at  which  necessary  repairs  could 
be  executed,  mortgagee  was  entitled  to  recover  for  actual  total  loss,  and  no 
notice  of  abandonment  was  necessary;  Ruys  v.  Royal  Exchange  Assur.  Corp. 
[1897]  2  Q.  B.  135,  66  L.  J.  Q.  B.  N.  S.  534,  77  L.  T.  N.  S.  23,  8  Asp.  Mar.  L.  Cas. 
294,  holding  where  a  vessel  is  captured  by  a  war  vessel  and  notice  of  abandonment 
given,  a  return  of  the  ship  after  the  commencement  of  an  action  did  not  disentitle 
owners  to  recover  as  for  a  total  loss. 

Cited  in  note  in  24  E.  R.  C.  198,  on  ship  retaining  its  character  as  such  after 
becoming  unsea worthy. 

The  decision  of  the  Court  of  Exchequer  Chamber  was  cited  in  Hart  v.  Boston  M. 
Ins.  Co.  26  N.  S.  427,  holding  there  could  be  no  recovery  for  a  total  loss  where  a 
vessel  stranded  and  master  made  no  attempt  to  get  her  off  while  the  purchaser 
floated  her  immediately. 
—  Of  freight. 

Cited  in  Troop  v.  Merchants'  Marine  Ins.  Co.  13  Can.  S.  C.  506,  holding  the  in- 
sured might  recover  the  freight  where  there  was  a  constructive  total  loss  of  tlie 
vessel  and  an  abandonment  made;  Schofield  v.  Carvill,  21  N.  B.  55S,  on  right  to 
recover  as  for  a  total  loss  of  freight. 

Distinguished  in  Marmaud .  v.  Melledge,  123  Mass.  173,  holding  on  a  con- 
structive total  loss  of  vessel  where  insurer  refused  to  receive  the  abandonment 
and  repaired  the  vessel  at  less  than  cost  and  insured  refused  to  accept  but  failed 
to  make  any  objections  to  repair,  there  could  be  no-  recovery  as  for  a  total  loss  of 
"freight. 
Notice  of  abandonment  as  essential  to  right  to  recover  for  a  total  loss. 

Cited  in  Churchill  v.  Nova  Scotia  M.  Ins.  Co.  28  X.  S.  52,  holding  notice  of 


1  E.  R.  C.  71]         NOTES  ON  ENGLISH  RULING  CASES.  12 

abandonment  not  necessary  where  the  owners  on  learning  that  the  vessel  has  been 
so  injured  as  to  be  a  proper  subject  for  abandonment  also  learn  that  there  has 
been  a  justifiable  sale  by  the  master;  Gallagher  v.  Taylor,  5  Can.  S.  C.  368  (re- 
versing 13  N.  S.  279),  holding  there  could  be  no  recovery  for  a  total  loss,  no 
notice  of  abandonment  being  given,  where  the  master  sold  the  vessel  without  at- 
tempting to  get  it  ofY  and  the  purchaser  got  it  off  and  floated  it;  Watson  v. 
Mercantile  M.  Ins.  Co.  9  N.  S.  396;  Singer  Mfg.  Co.  v.  Western  Assur.  Co.  Rap. 
Jud.  Quebec  10  C.  S.  379;  Phcenix  Ins.  Co.  v.  McGhee,  18  Can.  S.  C.  61  (reversing 
28  N.  B.  45), — on  notice  of  abandonment  as  essential  to  right  to  recover  for  a 
total  loss;  Trinder  v.  Thames  &  M.  M.  Ins.  Co.  [1898]  2  Q.  B.  114,  8  Asp.  Mar.  L. 
Cas.  373,  67  L.  J.  Q.  B.  N.  S.  666,  78  L.  T.  N.  S.  485,  14  Times  L.  R.  386,  46  Week. 
Rep.  561,  on  notice  of  abandonment  as  essential  to  right  to  recover  as,  for  a  total 
loss. 

Distinguished  in  Dickie  v.  Merchants'  Marine  Ins.  Co.  16  N.  S.  244,  holding  no 
liability  on  part  of  insurers  where  no  notice  of  abandonment  was  given,  the  vessel 
being  put  back  into  port  and  kept  afloat  and  then  sold  because  there  was  no  facil- 
ities there  for  making  repairs. 
—  As  to  loss  of  freight. 

Distinguished   in   Patch   v.   Pitman,   19   N.   S.   298,  holding  there  could  be  no 
recovery  for  a  total  loss  of  freight,  no  notice  of  abandonment  being  given  where 
on  the  abandonment  of  the  ship  the  cargo  was  reshipped  without  notice  to  in- 
surer. 
Abandonment  and   notice  of  abandonment   distinguished. 

Cited  in  Kaltenbach  v.  Mackenzie,  L.  R.  3  C.  P.  Div.  467,  48  L.  J.  C.  P.  N.  S. 
9,  39  L.  T.  N.  S.  215,  26  Week.  Rep.  844,  4  Asp.  Mar.  L.  Cas.  39,  distinguishing 
between  abandonment  and  notice  of  abandonment. 
Constructive  total  loss  converted  into  a  partial  loss. 

Cited  in  O'Leary  v.  Pelican  Ins.  Co.  29  N.  B.  510,  on  what  necessary  to  con- 
vert a  constructive  total  loss  into  a  partial  loss. 
Computation  to  ascertain  constructive  total  loss. 

Cited  in  Angel  v.  Merchants'  M.  Ins.  Co.  [1903]  1  K.  B.  811,  72  L.  J.  K.  B.  N.  S. 
498,  51  Week.  Rep.  530,  88  L.  T.  N.  S.  717,  19  Times  L.  R.  395,  9  Asp.  Mar.  L. 
Cas.  406,  holding  in  determining  whether  there  had  been  a  constructive  total  loss 
the  ship  owner  was  not  entitled  to  add  the  value  of  the  wreck  to  the  cost  of  re- 
pair. 
Nature  of  contract  of  insurance. 

Cited  in  Hurd  v.  Doty,  80  Wis.  1,  21  L.R.A.  746,  56  N.  W.  371,  on  nature  of 
contract  of  life  insurance. 
Right  to  recover  for  a  loss  of  freight. 

Cited  in  Jackson  v.  Union  M.  Ins.  Co.  L.  R.  8  C.  P.  572,  L.  R.  10  C.  P.  125,  42 
L.  J.  C.  P.  N.  S.  284,  22  Week.  Rep.  79,  44  L.  J.  C.  P.  N.  S.  27,  31  L.  T.  N.  S. 
789,  23  Week.  Rep.  169,  6  Eng.  Rul.  Cas.  650,  holding  a  ship  owner  might  recover 
from  assured  for  a  loss  of  freight  where  the  vessel  was  cast  on  the  rocks  and  the 
charterer  being  unable  to  wait  until  repairs  were-  made  shipped  by  another  ves- 
sel; Inman  S.  S.  Co.  v.  Bischoff,  L.  R.  7  App.  Cas.  670,  52  L.  J.  Q.  B.  N.  S.  169, 
47  L.  T.  N.  S.  5S1,  31  Week.  Rep.  141,  5  Asp.  Mar.  L.  Cas.  6,  holding  underwriters 
not  liable  for  a  loss  of  freight  where  charterers  by  reason  of  an  abatement  clause 
in  contract  refuse  to  pay  freight  after  a  certain  date  because  of  the  unseaworthy 
condition  of  the  ship;  Thu  Alps  [1893]  P.  109,  62  L.  J.  Prob.  N.  S.  59,  1  Reports, 
587,  68  L.  T.  N.  S.  624,  41  Week.  Rep.  527,  7  Asp.  Mar.  L.  Cas.  337,  holding  the 


13  NOTES  ON  ENGLISH  RULING  CASES.        [1  E.  R.  C.  112 

underwriters  liable  for  freight  where  because  of  a  fire  which  laid  the  vessel  up 
for  a  period  of  time  the  charterers  in  reliance  upon  an  abatement  clause  in  the 
contract  refused  to  pay  for  that  period. 
Liability  of  freight  for  general  average. 

The  decision  of  Court  of  Common  Pleas  was  cited  in  Steamship  Carisbrook  Co. 
v.  London  &  P.  M.  &  General  Ins.  Co.  [1901]  2  K.  B.  861,  70  L.  J.  K.  B.  N.  S. 
930,  50  Week.  Rep.  42,  17  Times  L.  R.  764,  [1902]  2  K.  B.  681,  71  L.  J.  K.  B. 
N.  S.  978,  50  Week.  Rep.  691,  87  L.  T.  N.  S.  41S,  18  Times  L.  R.  783,  9  Asp.  Mar. 
L.  Cas.  332,  holding  where  a  ship  chartered  to  proceed  to  a  foreign  port  and  bring 
back  cargo,  is  stranded  on  the  outward  voyage,  but  continued  voyage  after  mak- 
ing repairs  and  brought  back  the  cargo,  the  chartered  freight  was  liable  to  con- 
tribute to  the  general  average. 

Commencement  of  insurance. 

Cited  in  note  in  13  E.  R.  C.  713,  as  to  when  risk  commences  on  insurance  of 
chartered  freight. 

Distinguished  in  Beckett  v.  West  of  England  M.  Ins.  Co.  25  L.  T.  N.  S.  739,  1 
Asp.  Mar.  L.  Cas.  185,  where  an  "at  and  from"  policy  was  coupled  with  a  clause 
that  insurance  should   commence  with   "loading     ...     at   as   above"   and   the 
loading  was  never  completed. 
Insurance  on  chartered  freight. 

Cited  in  note  in  13  E.  R.  C.  312,  on  right  to  insure  expectant  value  or  profits 
from  success  of  adventure. 

Effect  of  abandonment  on  rights  to  ship. 

Cited  in  Barrs  v.  Merchants'  Marine  Ins.  Co.  26  N.  B.  339,  holding  that  under- 
writers by  abandonment  of  ship  become  entitled  to  portion  of  freight  earned  after 
damage  to  ship. 

1  E.  R.  C.  112,  HAMILTON  v.  MENDEZ,  1  W.  Bl.  276,  2  Burr.  1198. 
Existing  conditions  as  sole  ground  for  abandonment  of  vessel. 

Cited  in  Watson  v.  Insurance  Co.  of  N.  A.  1  Binn.  47,  on  right  of  abandonment 
when  exists;  Shepherd  v.  Henderson,  L.  R.  7  App.  Cas.  49.  holding  no  constructive 
total  loss  existed  where  at  time  of  notice  of  abandonment  there  was  a  reasonable 
prospect  that  the  vessel  might  be  gotten  off. 

Cited  in  note  in  1  E.  R  C.  12S,  129,  131,  on  criterion  of  time  in  cases  of  aban 
donment  and  total  loss  under  marine  policy. 
—  Later  favorable  conditions. 

Cited  in  Hallett  v.  Peyton,  1  Cai.  Cas.  28,  holding  there  could  be  no  recovery 
for  a  total  loss  where  a  vessel  is  captured  and  restoration  made  although  the 
abandonment  was  made  before  knowledge  of  the  restoration  received;  Kenny  v. 
Halifax  Marine  Ins.  Co.  1  N.  S.  141,  upholding  recovery  for  total  loss,  where  at 
time  of  abandonment,  vessel  was  total  loss,  though  heavy  gale  afterwards  blew  her 
off  rocks  and  she  was  brought  into  port  without  serious  damage;  Bainbridge  v. 
Neilson,  1  Campb.  237,  10  East,  329,  1  Eng.  Rul.  Cas.  121,  holding  recapture  at 
small  salvage  and  expense  so  that  voyage  is  worth  pursuing  nullifies  the  abandon- 
ment made  on  tidings  of  capture. 
Ground  for  abandonment. 

Cited  in  Gilfert  v.  Hallet,  2  Johns.  Cas.  296,  holding  a  right  to  abandon  for  a 
total  loss  existed  where  pirates  seized  part  of  the  cargo  and  the  vessel  because  of 
weather  and  want  of  provisions  was  forced  to  put  into  a  port  where  the  remaining 


1  E.  R.  C.  112]        NOTES  ON  ENGLISH  RULING  CASES.  14 

goods  were  sold  and  the  voyage  broken  up;  Dickey  v.  New  York  Ins.  Co.  4  Cow. 
222,  considering  when  an  abandonment  must  be  made;  Ruckman  v.  Merchants' 
Louisville  Ins.  Co.  r  Duer,  342,  holding  that  loss  of  the  voyage  is  not  a  valid 
and  sufficient  cause  for  abandonment;  King  v.  Middletown  Ins.  Co.  1  Conn.  183 
(dissenting  opinion),  on  right  of  insured  to  abandon  for  a  total  loss;  Beale  v. 
Pettit,  1  Wash.  C.  C.  241,  Fed.  Cas.  No-.  1,158,  on  no  right  to  abandon  as  existing 
where  notice  was  had  of  the  recovery  of  the  vessel  being  captured;  Hart  v. 
Boston  M.  Ins.  Co.  26  N.  S.  427,  holding  there  could  be  no  recovery  for  a  total 
loss  where  a  vessel  is  stranded  and  no  steps  are  taken  to  get  her  off  while  the 
purchaser  gets  her  up  immediately  without  further  trouble;  Providence  Washing- 
ton Ins.  Co.  v.  Corbett,  9  Can.  S.  C.  256,  holding  no  right  to  recover  for  a  total 
loss  where  a  vessel  was  driven  ashore  and  the  master  without  attempting  to  float 
sold  her  and  the  purchaser  immediately  and  without  difficulty  floated  her  off; 
Roux  v.  Salvador,  1  E.  R.  C.  46,  3  Bing.  N.  C.  266,  7  L.  J.  Exch.  N.  S.  328,  on 
rules  on  subject  of  abandonment. 

Distinguished  in  Goold  v.  Shaw,  1  Johns.  Cas.  293,  holding  no  right  to  abandon 
a  ship  and  recover  for  a  total  loss  existed  where  the  ship  was  compelled  to  put 
in  for  repairs  and  the  cargo  sold  because  of  danger  of  spoiling  and  the  voyage 
broken  up  where  the  vessel  might  have  been  repaired  for  less  than  half  her  value. 

—  Vessel  saved  after  peril  and  attempted  abandonment. 

Cited  in  Peele  v.  Merchants'  Ins.  Co.  3  Mason,  27,  Fed.  Cas.  No.  10,905,  holding 
the  insured  had  a  right  to  abandon  a  vessel  where  it  was  cast  on  the  rocks  and 
it  appeared  that  there  was  no  chance  to  get  it  off  and  that  it  would  become  a 
total  wreck  although  by  reason  of  extremely  good  weather  and  good  fortune  it 
was  gotten  off;  Oliver  v.  Newburyport  Ins.  Co.  3  Mass.  37,  3  Am.  Dec.  77,  hold- 
ing the  insured  was  entitled  to  recover  for  only  a  partial  loss  where  the  ship 
was  captured  and  recaptured  and  sold  to  satisfy  the  claims  for  salvage  the  master 
purchasing  where  the  owners  offered  to  abandon  the  proceeds  of  the  sale  but  not 
the  ship. 

—  Vessel  captured  and  recaptured  or  released. 

Cited  in  Queen  v.  Union  Ins.  Co.  2  Wash.  C.  C.  331,  Fed.  Cas.  No.  11,505, 
holding  no  right  of  abandonment  existed  where  a  ship  was  captured  and  re- 
captured and  sold  for  salvage  and  purchased  by  the  captain  for  the  benefit  of 
all  concerned;  De  Peau  v.  Russel,  1  Brev.  441,  2  Am.  Dec.  676,  holding  owner  had 
no  right  to  abandon  on  the  ground  that  the  voyage  was- broken  up  by  a  capture  of 
the  vessel  after  hearing  of  her  release  and  safe  arrival  at  port  of  destination; 
Marine  Ins.  Co.  v.  Tucker,  3  Cranch,  357,  2  L.  ed.  466,  holding  there  might  be  a 
recovery  for  a  total  loss  where  a  vessel  is  captured  and  then  recaptured,  the 
voyage  being  broken  up,  where  no  evidence  that  the  vessel  wasn't  damaged  and 
selling  at  the  salvage  sale  for  far  less  than  her  value;  Ruys  v.  Royal  Exchange 
Assur.  Corp.  [1897]  2  Q.  B.  135,  66  L.  J.  Q.  B.  N.  S.  534,  77  L.  T.  N.  S.  23,  8  Asp. 
Mar.  L.  Cas.  294,  holding  a  ship  owner  was  not  disentitled  to  recover  as  for  a 
total  loss  of  a  ship  captured  as  a  prize,  notice  of  abandonment  having  been 
given,  where  ship  returned  after  the  action  was  commenced. 
Total  loss  how  converted  into  a  partial  loss. 

Cited  in  O'Leary  v.  Pelican  Ins.  Co.  29  N.  B.  510,  on  how  a  constructive  total 
loss  is  converted  into  a  partial  loss. 
Time  of  liability  oai   policy  of  marine  insurance. 

Cited  in  Smith  v.  Steinbach,  2  Cai.  Cas.  158,  holding  that  insurance  at  and 
from  foreign  port  commences  at  time  goods  are  first  on  board. 


15  NOTES  o\    ENGLISH   RULING  CASKS.        j  1    E.   R.  C.    121 

Distinguished  in  Whiting  v.  Independent  Mut.  Ins.  Co.  15  Md.  297,  holding  the 
liability  of  an  underwriter  on  a  marine  insurance  policy  became  fixed  as  soon  as 
the  loss  occurred. 

Indemnity  nature  of  contract  of  insurance. 

Cited  in  Exchange  Bank  v.  Loh,  104  Ga.  447,  44  L.R.A.  372,  31  S.  E.  459,  hold- 
ing creditor  has  an  insurable  interest  in  debtor's  life  for  indemnity  but  none 
otherwise;  Eagle  Ins.  Co.  v.  Lafayette  Ins.  Co.  9  Ind.  443,  holding  reassurance 
to  be  a  contract  of  indemnity;  Charleston  Ins.  &  T.  Co.  v.  Neve,  2  McMull.  L. 
237,  holding  an  assignee  of  a  policy  of  fire  insurance  might  recover  as  to  the 
amount  of  his  interest  under  it;  Mathewson  v.  Western  Assur.  Co.  10  Lower  Can. 
Rep.  8,  holding  the  assignee  of  a  debt  who  insures  the  buildings  as  security  for 
the  debt  cannot  recover  on  the  policy  when  buildings  destroyed  were  rebuilt  and 
restored  to  their  original  condition  and  value  by  the  owner;  Robert  v.  Traders' 
Ins.  Co.  17  Wend.  631;  Illinois  Mut.  Ins.  Co.  v.  Andes  Ins.  Co.  67  111.  362,  16  Am. 
Rep.  620,  7  Legal  Gaz.  302, — on  contract  of  insurance  as  being  one  of  indemnity; 
Robert  v.  New  England  Mut.  Ins.  Co.  2  Disney  (Ohio)  106;  Connecticut  Mut.  L. 
Ins.  Co.  v.  Schaefer,  94  U.  S.  457,  24  L.  ed.  251, — on  nature  of  contract  of  life 
insurance;  Rankin  v.  Potter.  L.  R.  6  H.  L.  S3,  42  L.  J.  C.  P.  N.  S.  169,  29  L 
T.  N.  S.  142,  22  Week.  Rep.  1,  2  Asp.  Mar.  L.  Cas.  65,  1  Eng.  Rul.  Cas.  70,  on 
contract  of  marine  insurance  being  a  contract  of  indemnity;  Dalby  v.  India  & 
London  Life  Assur.  Co.  13  E.  R.  C.  383,  24  L.  J.  C.  P.  N.  S.  2,  15  C.  B.  365,  18 
Jur.  1024,  holding  that  life  insurance  policy  is  not  contract  to  indemnify  against 
loss  like  marine  policy. 

1   E.  R   C.   121,  BAINBRIDGE  v.  NEILSON,   1   Campb.   237,   10  East,  329,  10 

Revised  Rep.  316. 
Constructive  total  loss  reduced  to  partial  loss  after  abandonment. 

Cited  in  O'Leary  v.  Pelican  Ins.  Co.  29  N.  B.  510,  on  how  what  was  a  con- 
structive total  loss  at  time  of  abandonment  may  be  converted  into  a  partial 
loss;  Kenny  v.  Halifax  Marine  Ins.  Co.  1  N.  S.  141,  holding  there  could  be  re- 
covery for  a  total  loss  where  at  time  abandonment  was  made  it  appeared  that 
vessel  was  a  total  loss  though  a  heavy  gale  afterwards  blew  her  off  the  rocks  and 
she  was  brought  into  port  without  serious  damage;  Bradlie  v.  Maryland  Ins.  Co. 
12  Pet.  378,  9  L.  ed.  1123,  on  right  to  convert  what  was  a  constructive  total  loss 
into  a  partial  loss;  Sailing  Ship  "Blairmore"  Co.  v.  Macredie  [1898]  A.  C.  593, 
holding  where  a  vessel  was  sunk  by  a  squall  and  notice  of  abandonment  made,  the 
underwriters  could  not  by  raising  and  saving  her  from  being  a  constructive  loss, 
change  a  constructive  total  loss  into  a  partial  loss. 

Cited  in  note  in  1  E.  E.  C.  12S,  129,  on  criterion  of  time  in  cases  of  abandon- 
ment and  total  loss  under  marine  policy. 

Distinguished  in  Ruys  v.  Royal  Exchange  Assur.   Corp.    [1897]    2  Q.  B.   135, 
holding  a  ship  owner  was  not  disentitled  to  recover  for  a  total  loss  where  the 
vessel   was  captured  and   notice  of   abandonment  given   where  the  ship  was  re- 
turned after  the  commencement  of  the  action. 
Conclusiveness  of  an  abandonment. 

Disapproved  in  Peele  v.  Merchants'  Ins.  Co.  3  Mason,  27,  Fed.  Cas.  No.  10,905, 
considering  the  conclusiveness  of  an  abandonment  and  holding  it  not  destructible 
by  facts  subsequent  to  those  on  which  it  was  based. 
Right  and  grounds  of  abandonment. 

Cited  in  Norton  v.  Lexington  F.  L.  &  M.  Ins.  Co.  16  111.  235  (dissenting  opin- 
ion), on  the  right  of  abandonment  for  a  constructive  total  loss;   Pezant  v.  Na- 


1  E.  R.  C.  121]        NOTES  ON  ENGLISH  RULING  CASES.  16 

tional  Ins.  Co.  15  Wend.  453,  holding  no  right  to  abandon  for  a  total  loss  existed 
where  the  vessel  arrived  safely  at  port  of  destination  in  a  reparable  state. 

Cited  in  notes  in  1  E.  R.  C.  17,  as  to  when  abandonment  may  be  made  and 
total  loss  claimed  under  marine  policy;  1  E.  R.  C.  131,  on  criterion  of  time  in 
cases  of  abandonment  and  total  loss  under  marine  policy. 

Insurance  as  contract  of  indemnity. 

Cited  in  Illinois  Mut.  F.  Ins.  Co.  v.  Andes  Ins.  Co.  67  111.  362,  16  Am.  Rep. 
620,  7  Legal  Gaz.  302,  on  contract  of  insurance  as  one  of  indemnity;  Eagle  Ins. 
Co.  v.  Lafayette  Ins.  Co.  9  Ind.  443,  holding  reassurance  to  be  contract  of  in- 
demnity. 

1  E.  R.  C.  132,  MITCHELL  v.  EDIE,  1  T.  E.  608,  1  Revised  Rep.  318. 
Time  for  declaring  or  electing  abandonment. 

Cited  in  Smith  v.  Steinbach,  2  Cai.  Cas.  158,  holding  abandonment  never  too 
late  if  loss  continue  total  at  time  of  commencement  of  action;  Livermore  v.  New- 
buryport  M.  Ins.  Co.  1  Mass.  264,  holding  the  owner  of  a  vessel  waived  his  right 
to  give  notice  of  abandon  where  he  waited  over  a  month  after  learning  of  the  de- 
tention of  the  ship  before  giving  such;  Norton  v.  Lexington  F.  L.  &  M.  Ins.  Co. 
16  111.  235  (dissenting  opinion)  ;  Russel  v.  Union  Ins.  Co.  4  Dall.  421,  1  L.  ed. 
892;  Parker  v.  Towers,  2  Browne  (Pa.)  80,  Appx.;  Peele  v.  Merchants'  Ins.  Co. 
3  Mason,  27,  Fed.  Cas.  No.  10,905, — on  the  necessity  that  an  abandonment  be 
made  within  a  reasonable  time;  Dickey  v.  New  York  Ins.  Co.  4  Cow.  222,  con- 
sidering where  an  abandonment  must  be  made;  Rankin  v.  Potter,  L.  R.  6  H.  L. 
83,  42  L.  J.  C.  P.  N.  S.  169,  29  L.  T.  N.  S.  142,  22  Week.  Rep.  1,  2  Asp.  Mar.  L. 
Cas.  65,  1  Eng.  Rul.  Cas.  70,  holding  an  abandonment  by  a  ship  owner  was  made 
on  sufficient  time  where  the  vessel  being  damaged  on  the  outward  voyage,  con- 
tinued on  its  way  after  slight  repairs  were  made,  and  after  the  refusal  of  the 
charterer  to  load  the  vessel  was  examined  and  it  was  found  the  cost  of  repairs 
would  exceed  the  value  of  the  ship  as  repaired  and  the  value  of  the  freight  to  be 
earned. 
Necessity   of   giving   notice   of   abandonment. 

Cited  in  Townsend  v.  Phillips,  2  Root,  400,  holding  plaintiffs  could  not  recover 
for  a  constructive  total  loss  of  a  vessel  where  no  notice  of  abandonment  was 
given;  King  v.  Western  Assur.  Co.  7  U.  C.  C.  P.  300,  on  necessity  of  notice  of 
abandonment  being  given  in  order  to  recover  for  a  constructive  total  loss;  Oliver 
v.  Newburyport  Ins.  Co.  3  Mass.  37,  3  Am.  Dec.  77,  on  necessity  of  insured 
giving  notice  of  intention  to  abandonment;  Roux  v.  Salvador,  1  E.  R.  C. 
46,  3  Bing.  N.  C.  266.  7  L.  J.  Exch.  N.  S.  328,  holding  that  where  owner  is  dis- 
abled from  recovering  in  specie  thing  insured  there  is  total  loss,  without  necessity 
of  notice  of  abandonment. 
Right  and  grounds  of  abandonment. 

Cited  in  American  Ins.  Co.  v.  Ogden,  15  Wend.  532,  holding  the  inability  ot 
master  to  procure  the  necessary  funds  to  make  the  repairs  is  a  good  ground  for 
an  abandonment  although  the  vessel  is  in  the  port  of  destination;  Gilfert  v. 
Hallet,  2  Johns.  Cas.  296,  holding  the  right  existed  to  abandon  a  cargo  where  the 
vessel  because  of  storms  and  meeting  with  pirates  was  compelled  to  put  into 
port  for  provisions  and  repairs,  a  large  part  of  the  cargo  being  taken  by  the 
pirates;  Armroyd  v.  Union  Ins.  Co.  3  Binn.  437,  on  the  right  of  abandonment; 
Deblois  v.  Ocean  Ins.  Co.  ]6  Pick.  303,  28  Am.  Dec.  245,  on  the  right  of  abandon- 
ment for  technical  total  losses. 


J7  NOTES  ON  ENGLISH   RULING   CASES.        |1    E.   R.  C.    Hi 

Right  to  recover  as  for  an  average  loss  on  waiver  of  abandonment. 

Cited  in  Suydam  v.  Marine  Ins.  Co.  2  Jolins.  13S,  holding  the  failure  to  aban- 
don a  cargo  where  grounds  existed  for  such  abandonment  did  not  prevent  the 
assured  from  recovering  as  for  an  average  loss;  Watson  v.  Insurance  Co.  of  N '.  A. 
1  Binn.  47,  holding  same  when  plaintiff  proves  a  capture  and  condemnation  of 
the  property  but  no  abandonment  made;  Radcliff  v.  Coster,  Hoffm.  Ch.  98,  on  the 
mode  of  adjusting  an  average  loss. 
What  constitutes  a  total  loss. 

Cited  in  Alexander  v.  Baltimore  Ins.  Co.  4  Cranch,  370,  2  L.  ed.  650,  on  what  a 
total  loss  consists  in;  Saunders  v.  Baring,  34  L.  T.  N.  S.  419,  3  Asp.  Mar.  L.  Cas. 
133,  holding  the  owner  of  a  cargo  of  coal  which  has  become  so  damaged  during 
a  storm  as  to  render  an  immediate  •  sale  necessary,  entitles  owner  to  recover  as 
for  a  total  loss. 

1  E.  R.  C.  141,  CASE  v.  DAVIDSON,  5  M.  &  S.  70,  affirmed  in  Exchequer  Cham- 
ber, reported  in  5  J.  B.  Moore,  116,  2  Brod.  &  B.  379,  8  Price,  542,  17  Revised 
Rep.  280. 
Rights  passing  to  abandonee  of  ship. 

Cited  in  The  Red  Sea,  65  L.  J.  Adm.  9,  [1896]  P.  20,  73  L.  T.  N.  S.  462,  44 
Week.  Rep.  306.  8  Asp.  Mar.  L.  Cas.  102,  holding  on  the  abandonment  of  a  strand- 
ed vessel  for  a  constructive  total  loss,  cash  advances  by  the  charterers  to  the 
master  for  ship's  disbursements  did  not  pass  to  the  underwriters,  the  cargo  bavin:.' 
been  delivered. 
Subrogation  of  insurer  to  rights  of  insured. 

Cited  in  The  Atlas  (Phcenix  Ins.  Co.  v.  The  Atlas),  93  U.  S.  302,  23  L.  ed.  863, 
on  suit  as  maintainable  for  the  insurer  against  wrong-doer  in  the  name  of  the 
injured  party;  Midland  Ins.  Co.  v.  Smith,  L.  R.  6  Q.  B.  Div.  561,  50  L.  J.  Q.  B. 
N.  S.  329,  45  L.  T.  N.  S.  411,  29  Week.  Rep.  850,  45  J.  P.  699,  holding  an  insur- 
ance company  could  not  maintain  in  its  own  name  an  action  against  the  wife  of 
the  assured  who  feloniously  burned  the  insured  property. 

1  E.  R.  C.  149,  DAVIDSON  v.  CASE,  17  Revised  Rep.  280,  5  J.  B.  Moore,  116,  2 
Brod.  &  B.  379,  8  Price,  542,  affirming  the  decision  of  the  Court  of  King's 
Bench,  reported  in  5  Maule  &  S.  79. 

Effect  of  abandonment  to  transfer  title  to  abandonee. 

Cited  in  Harkley  v.  Provincial  Ins.  Co.  18  U.  C.  C.  P.  335,  on  the  effect  of  notice 

of  abandonment  on  the  title  of  a  ship. 

—  Rights  in  freight  on  abandonment  of  ship. 

Cited  in  Lord  v.  Neptune  Ins.  Co.  10  Gray,  109;  Atlantic  Ins.  Co.  v.  Storrow,  1 
Edw.  Ch.  621;  Buffalo  City  Bank  v.  Northwestern  Ins.  Co.  30  N.  Y.  251, — on 
underwriters  after  the  abandonment  of  a  vessel  being  entitled  to  freight  subse- 
quently earned;  Keith  v.  Burrows,  L.  R.  2  App.  Cas.  636,  46  L.  J.  C.  P.  N.  S.  801, 
37  L.  T.  N.  S.  291,  25  Week.  Rep.  831,  3  Asp.  Mar.  L.  Cas.  481,  on  the  underwriters 
as  being  entitled  to  receive  the  freight  carried  by  the  ship  on  its  abandonment. 

—  Liability  of  abandonee. 

Cited  in  Hammond  v.  Essex  F.  &  M.  Ins.  Co.  4  Mason,  196,  Fed.  Cas.  No.  6,001, 
holding  after  the  acceptance  of  an  abandonment  by  the  insurers  they  are  liable 
for  the  seamen's  wages  from  such  time. 
Notes  on  E.  R.  C. — 2. 


1  E.  R.  C.  io6]        NOTES  ON  ENGLISH  RULING  CASES.  18 

1  E.  R.  C.  156,  DOCKWRAY  v.  DICKENSON,  Comb.  366,  Skinner,  640. 
Necessity  of  pleading  in  abatement  nonjoinder  of  proper  parties. 

Cited  in  Wheelwright  v.  Depeyster,  1  Johns.  471,  3  Am.  Dec.  345,  holding  in 
an  action  of  trover  by  a  joint  owner  the  defendant  cannot  on  the  trial  take  ad- 
vantage of  plaintiff's  failure  to  join  others  jointly  interested;  Newton  v.  Reardon, 

2  Cranch,  C.  C.  49,  Fed.  Cas.  No.  10,192,  holding  in  an  action  for  the  use  and 
occupation  of  land  by  one  of  joint  tenants  the  defendant  may  take  advantage  of 
the  failure  to  join  other  joint  tenants  without  pleading  it  in  abatement. 

Distinguished  in  Zabriskie  v.  Smith,  13  N.  Y.  322,  64  Am.  Dec.  551,  holding  in 
an  action  of  tort  by  one  of  joint  tenants  for  an  injury  to  the  personal  estate  upon 
a  failure  to  plead  the  nonjoinder  of  parties,  svich  fact  may  not  be  given  in  evidence 
in  diminution  of  damages. 
Right  of  party  having  joint  interest  in  property  to  recover  for  conversion. 

Cited  in  Paterson  v.  Thompson,  9  Ont.  App.  Rep.  326,  on  right  of  party  having 
a  joint  interest  in  propertj7  to  maintain  an  action  for  its  conversion. 
Justification  of  order  or  right. 

Cited  in  Talbot  v.  Three  Brigs,  1  Dall.  95,  1  L.  ed.  52,  holding  one  wishing  to 
justify  a  capture  as  prize  must  show  a  well  founded  right  to  do  so. 
Joinder  of  plaintiffs. 

Cited  in  notes  in  8  E.  R.  C.639,  on  necessity  of  execution  of  deed  by  attorney 
in  name  of  principal:  15  E.  R.  C.  445,  on  parties  plaintiff  in  action  on  covenant 
in  joint  demise  by  tenant"  in  common. 

1  E.  R.  C.  167,  BOULSTON  v.  SANDIFORD,  Skinner,  278,  s.  c.  sub.  nom.  Boson 
v.  Sandford,  Carth.  58,  Comb.  116,  Freem.  C.  L.  499,  1  Shower,  101,  3  Lev. 
258,    1    Shower,    29,    2    Shower,  479,  2  Salk.  440,  3  Salk.  203,  3  Mod.  321, 
.Molloy,  312. 
Duty  resting  on  common  carrier  to  carry  goods  for  hire. 

Cited  in  Doty  v.  Strong,  1  Pinney  (Wis.)  313,  Burnett  (Wis.)  158,  40  Am. 
Dec.  773,  holding  a  person  holding  himself  out  to  the  public  as  a  carrier  of 
freight  was  liable  for  the  damages  caused  by  his  refusal  to  carry  the  goods  of 
the  plaintiff;  Dorr  v.  New  Jersey  Steam  Nav.  Co.  11  N.  Y.  484,  62  Am.  Dec.  125; 
Jones  v.  Sims,  9  Port.  (Ala.)  236,  33  Am.  Dec.  313, — on  liability  of  common 
carrier  refusing  to  carry  goods  for  hire. 
Inability  of  common  carrier. 

Cited  in  Hollister  v.  Nowlen,  19  Wend.  234,  32  Am.  Dec.  455,  holding  a  com- 
mon carrier  was  liable  for  the  loss  of  a  passenger's  baggage,  although  they  had 
given  a  general  notice  that  baggage  was  carried  at  the  risk  of  the  owner;  Galena 
&  C.  Union  R.  Co.  v.  Kae,  18  111.  490,  68  Am.  Dec.  574,  holding  that  railroad 
company  may  be  held  liable  for  damages  sustained  by  reason  of  its  servants, 
giving  preference  to  one  person  over  another  because  of  bribes  or  other  improper 
motives;  Southern  Exp.  Co.  v.  Craft,  49  Miss.  480,  19  Am.  Rep.  4,  holding  that 
shipper  is  party  in  interest  to  contract  and  carrier  cannot  object  to  recovery  by 
him  unless  consignee  objects,  or  in  absence  of  objection  by  consignee  it  will  be 
presumed  that  he  consented. 
Nonjoinder  of  defendants  as  ground  for  abatement. 

Cited  in  McFadden  v.  Haley,  1  Brev.  96,  holding  that  in  action  of  trespass  by 
widow  to  try  title  to  land,  nonjoinder  of  co-heirs  can  be  taken  advantage  of  only 
by  plea  in  abatement;  Bank  of  Orange  v.  Brown,  3  Wend.  158,  holding  that  plea 
in  abatement  that  all  proprietors  of  steamboats  were  not  joined  in  action  against 


19  NOTES  ON  ENGLISH  RULING  I  A.SES.       Li  E.  R.  0.   L75 

them  as  common  carriers  for  loss  of  property,  was  bad,  where  gravaman  of  action 
was  breach  of  duty;  Mitchell  v.  Tarbutt,  1  E.  R.  C.  183,  5  T.  R.  649,  2  Revised 
Rep.  6S4,  holding  that  defendant  in  negligence  case  cannot  plead  in  abatement 
nonjoinder  of  other  joint  wrong  doers. 

Cited  in  note  in  1  E.  R.  C.  171,  173,  187,  on  nonjoinder  of  defendants  as 
ground  for  abatement. 

Disapproved  in  Jones  v.  Pitcher,  3  Stew.  &  P.    (Ala.)    135,  24  Am.  Dec.  716, 
holding  that  non-joinder  of  co-defendant  in  action  ex  contractu  can  only  be  taken 
advantage  of  by  plea  in  abatement. 
Proper  parties  defendant. 

Cited  in  YYeatherford  v.  Fishback,  4  111.  170,  holding  that  servant  may  be  sued 
for  deceit. 
Actions  on  contract. 

Cited  in  Colwell  v.  New  York  &  E.  R.  Co.  9  How.  Pr.  311,  holding  that  com- 
plaint alleging  agreement  to  carry  cattle  and  breach  of  agreement  and  loss  by 
reason  of  furnishing  insufficient  cars,  states  action  founded  upon  contract;  Bates 
v.  Reynolds,  7  Bosw.  G85,  holding  that  complaint  alleging  that  two  persons, 
common  carriers,  undertook  to  convey  and  deliver  certain  goods,  and  that  through 
their  negligence  such  goods  were  wholly  lost  states  action  on  contract,  where  de- 
fendants are  jointly  liable;  Milwaukee  v.  Hale,  1  Dougl.  (Mich.)  306,  holding 
that  where  certain  counts  in  complaint  set  forth  contract  and  breach  of  same, 
allegation  as  to  violation  of  duty  does  not  necessarily  make  action  one  in  tort; 
Wright  v.  Geer,  6  Vt.  151,  27  Am.  Dec.  538,  holding  that  in  action  against  two 
defendants,  setting  forth  joint  contract  to  erect  mill,  and  declaring  for  mis- 
feasance in  spoiling  work,  recovery  cannot  be  had  without  proving  joint  con- 
tract; Vail  v.  Strong,  10  Vt.  457,  holding  that  where  cause  of  action  originates 
in  contract,  and  declaration,  in  form,  counts  on  contract,  contract  must  be  proved 
as  laid. 
Dissenting  opinion  as  authority. 

Cited  in  note  in  7  E.  R.  C.  178,  on  dissenting  opinion  as  authority. 
Release  of  joint  obligors. 

Cited  in  note  in  21  E.  R.  C.  661,  on  release  of  one  as  release  of  all   persons 
joined  in  joint  bond. 
Master  as  agent  of  shipowners. 

Cited  in  The  Underwriter,  119  Fed.  713,  holding  that  master  had  no  authority 
to  bind  owner  for  coal,  where  charter  party  provided  that  charterer  should  pro- 
vide coal  used  by  vessel  and  that  master  should  be  under  orders  of  charterer; 
Starr  v.  Knox,  2  Conn.  215  (dissenting  opinion),  to  point  that  owner  is  liable 
for  necessary  disbursements  in  repairs  and  supplies  procured  by  master  during 
voyage;  Blanchard  v.  Page,  8  Gray,  281,  holding  .that  bill  of  lading  though  made 
by  master,  is  considered  in  law  as  having  been  made  by  error. 
Waiver  of  objection. 

Cited  in  Christian  &  C.  Co.  v.  Dantzler  Lumber  Co.  78  Miss.  74,  28  So.  788, 
to  the  point  that  taking  of  judgment  without  revivor  is  waived  by  not  objecting 
in  trial  court. 

1  E.  R.  C.  175,  KENDALL  v.  HAMILTON,  L.  R.  4  App.  Cas.  504,  41  L.  T.  N.  S. 

418,  28  Week.  Rep.  97,  4S  L.  J.  C.  P.  N.  S.  705. 
Merger  of  claims  and  contract  rights  in  judgment. 

(?ited   in   Harper  v.   Harper,  2   B.   C.   15,  holding  that  plaintiff's  rights   as  a 


1  E.  R.  C.  175J        NOTES  ON  ENGLISH  RULING  CASES.  20 

legatee  were  merged  into  those  of  a  judgment  creditor  by  his  procurement  of  a 
judgment  for  unpaid  legacy;  Smart  v.  Moir,  7  Manitoba  L.  Rep.  5G5,  holding 
on  tinal  judgment  being  signed  the  original  cause  of  action  is  merged  into  the 
judgment;  Westmoreland  Green  &  Blue  Slate  Co.  v.  Feilden  [1891]  3  Ch.  15,  60 
L.  J.  Ch.  N.  S.  680,  65  L.  T.  N.  S.  428,  40  Week.  Rep.  23,  holding  that  cause  of 
action  for  payment  of  calls  made  before  winding-up  of  company  is  not  merged  in 
balance  order  made  in  winding-up  for  amount  of  calls. 

Distinguished  in  Wegg-Prosser  v.  Evans  [1894]  2  Q.  B.  101  [1895]  1  Q.  B.  108, 
64  L.  J.  Q.  B.  N.  S.  1,  9  Reports,  830,  43  Week.  Rep.  66,  holding  that  where  suit 
is  brought  on  a  check  and  judgment  not  satisfied  such  judgment  is  not  a  bar  to 
an  action  against  a  co-obligor  by  way  of  guaranty,  being  different  causes  of 
action. 

—  Partnership   and   individual   debts. 

Cited  in  Cambefort  v.  Chapman,  L.  R.  19  Q.  B.  Div.  229,  56  L.  J.  Q.  B.  N.  S. 
639,  57  L.  T.  N.  S.  625,  35  Week.  Rep.  838,  51  J.  P.  455,  holding  that  a  suit  to 
judgment  against  a  partner  in  the  firm  name  is  a  bar  to  an  action  against  the 
other  partner  on  same  debt  the  obligation  being  joint  only  and  the  right  of 
action  merging  into  the  judgment;  Munster  v.  Cox,  L.  R.  10  App.  Cas.  680,  55 
L.  J.  Q.  B.  N.  S.  108,  53  L.  T.  N.  S.  474,  34  Week.  Rep.  461,  holding  that  a  judg- 
ment against  a  partnership  may  not  be  amended  so  as  to  include  a  dormant  and 
concealed  partner,  the  right  of  action  in  that  case  becoming  rem  judicatour;  Ex 
parte  Chandler,  L.  R.  13  Q.  B.  Div.  50,  50  L.  T.  N.  S.  635,  holding  that  a  partner- 
ship debt  is  not  necessarily  joint  and  several  and  that  a  separate  cause  of 
action  is  not  merged  into  a  joint  judgment;  Re  Hodgson,  L.  R.  31  Ch.  Div.  177, 
55  L.  J.  Ch.  N.  S.  241,  54  L.  T.  N.  S.  222,  34  Week.  Rep.  127,  holding  that  where 
creditors  of  partnership  are  allowed  dividend  out  of  estate  of  deceased  partner 
such  allowance  is  not  a  bar  to  an  action  against  the  estate  of  other  partner  on 
the  same  debt  but  that  separate  creditors  must  be  allowed  dividends  out  of 
separate  estate  of  deceased  partner  in  preference  to  joint  creditor,  the  creditor 
not  having  several  rights  in  separate  estate. 

—  Election  to  sue  agent  or  principal  as  a  bar  to  action  against  both. 
Cited  in  Sessions  v.  Block,  40  Mo.  App.  569,  holding  that  recovery  of  judgment 

against  the  agent  after  disclosure  of  principal  is  a  bar  to  an  action  against 
principal  though  the  judgment  against  agent  was  unsatisfied;  Rounsaville  v. 
North  Carolina  Home  Ins.  Co.  138  N.  C.  191,  50  S.  E.  619.  holding  that  suit 
against  agent  to  judgment  after  a  disclosure  of  facts  is  an  election  to  hold 
agent  and  discharge  principal;  Toronto  Dental  Mfg.  Co.  v.  McLaren,  14  Out.  Pr. 
Rep.  89,  holding  that  so  long  as  judgments  stands  against  an  agent,  no  action 
can  be  brought  against  the  principal  on  the  same  cause  of  action  such  right  being 
merged   in  the  judgment. 

Cited  in  note  in  21  L.R.A.  (N.S.)  792,  on  commencing  action  or  taking  judg- 
ment against  either  undisclosed  principal  or  his  agent  as  bar  to  subsequent 
action  against  other. 

Cited  in  Hollingsworth  Contr.  78,  on  election  to  sue  agent  or  discovered  princi- 
pal as  bar  to  action  against  other;  Tiffany  Ag.  238,  on  right  to  elect  to  resort  to 
agent  signing  negotiable  instrument  in  his  own  name. 

Distinguished  in  Herod  v.  Ferguson,  25  Ont.  Rep.  567,  holding  that  judgment 
against  the  person  for  whom  services  were  actually  performed  is  not  a  bar  to 
action  against  one  who  negotiated  the  contract  for  services. 

—  Recovery  against  one  as  a  bar  to  further  action  against  others  liable. 
Cited  in  Coles  v.  McKenna,  80  N.  J.  L.  N48,  76  Atl.  344,  holding  that  in  action 


21  NOTES  OX   ENGLISH    RULING   CASKS.        [1    E.   15.  C.  175 

brought  against  four  defendants  jointly  plaintiff  cannot  split  up  his  cause  of 
action  by  entering  judgment  against  two  by  default  and  subsequently  enter  judg- 
ment against  other  defendants;  Willcocks  v.  Howell,  8  Out.  Rep.  576,  holding 
that  a  recovery  of  a  verdict  against  some  of  several  persons  concerned  in  a  libel 
is  a  bar  to  an  action  against  others  for  the  same  libel  though  judgment,  was 
never  entered;  Keating  v.  Graham,  26  Ont.  Rep.  3G1,  on  the  effect  of  a  judgment 
destroying  right  of  action  against  a  co-contractor  even  though  plaintiff  did  not 
know  that  he  had  a  remedy  against  such  co-contractor;  Dueber  Watch  Case  Mfg. 
Co.  v.  Taggart,  20  Ont.  App.  Hep.  295,  on  the  suit  of  one  of  two  joint  debtors  on 
a  note  to  judgment  as  a  bar  to  suit  against  the  others  on  the  same  note;  Grand 
Trunk  R.  Co.  v.  McMillan,  10  Can.  S.  C.  543,  on  the  question  as  to  whether  the 
release  of  one  of  a  number  of  tort  feasors  or  satisfaction  one  is  not  a  re- 
lease of  them  all;  Blyth  v.  Fladgate,  03  L.  T.  N.  S.  540,  00  L.  J.  Ch.  N.  S.  66  [1891] 
1  Ch.  337,  39  Week.  Rep.  422,  holding  that  the  liability  arising  out  of  a  breach 
of  trust  is  joint  and  several  and  that  a  judgment  against  one  of  the  persons 
liable  is  not  a  bar  to  action  against  others;  Hoare  v.  Niblett,  00  L.  J.  Q.  B.  N.  S. 
565  [1891]  1  Q.  B.  781.  04  L.  T.  N.  S.  059,  39  Week.  Rep.  491,  55  J.  P.  664,  hold- 
ing that  an  action  against  a  husband  on  a  lease  is  a  bar  to  an  action  against  the 
wife  on  the  same  lease;  Odell  v.  Cormack  Bros.  L.  R.  19  Q.  B.  Div.  223,  on  dis- 
missal of  action  against  one  of  two  joint  obligors  and  proceeding  to  judgment 
against  the  other  as  being  a  bar  to  subsequent  action  against  the  one  dismissed; 
Hammond  v.  Schofield  [1891]  1  Q.  B.  453,  60  L.  J.  Q.  B.  N.  S.  539,  holding  that 
an  action  to  judgment  is  a  bar  to  action  against  a  supposed  partner  even  though 
plaintiff  did  not  know  that  he  had  a  right  of  action  against  him  at  time  he 
signed  judgment,  and  even  after  such  judgment  has  been  set  aside  with  defend- 
ant's consent. 

Cited  in  notes  in  43  L.R.A.  162,  on  effect  of  judgment  in  action  against  part  of 
obligors  on  joint  or  joint  and  several  contract  upon  liability  of  others;  11  Eng. 
Rul.  Cas.  14,  on  judgment  against  one  of  several  joint  contractors  or  debtors  as 
bar  to  action  against  others. 

Cited  in  1  Beach,  Contr.  833,  on  judgment  against  one  joint  debtor  as  discharge 
of   others. 

Distinguished  in  Zweig  v.  Morrissey,  5  B.  C.  484,  holding  that  where  final 
judgment  has  been  taken  against  a  defendant  who  has  not  appeared  it  is  not  a 
bar  to  taking  judgment  against  another  defendant  whether  lie  appears  or  not; 
Beck  v.  Pierce,  L.  R.  23  Q.  B.  Div.  316,  58  L.  J.  Q.  B.  N.  S.  516,  61  L.  T.  N.  S. 
44S,  38  Week.  Rep.  29,  54  J.  P.  198,  holding  that  a  judgment  against  a  woman 
for  her  prenuptial  debts  is  not  a  bar  to  a  subsequent  action  against  her  husband 
for  the  same  debts;  Badeley  v.  Consolidated  Bank,  34  Ch.  Div.  536,  55  L.  T.  N.  S. 
635,  35  Week.  Rep.  136,  holding  the  guarantor  of  a  debt  standing  on  general 
rights  of  indemnity  is  not  confined  to  rights  of  principal  creditor,  in  that  he  after 
recovery  of  judgment  against  one  partner  may  sue  another  for  the  same  debt ; 
Weall  v.  James,  68  L.  T.  N.  S.  515,  4  Reports,  356,  holding  that  where  one  de- 
fendant submits  to  judgment  and  pays  one  half  of  the  debt,  the  plaintiff  may  pro- 
ceed to  judgment  against  the  other  for  the  unpaid  portion  of  the  debt;  McLeod 
v.  Poun  [189S]  2  Ch.  295,  67  L.  J.  Ch.  N.  S.  551,  79  L.  T.  N.  S.  67,  47  Week. 
Rep.  74,  holding  that  where  judgment  has  been  taken  by  consent  against  one 
co-contractor  it  is  a  bar  to  action  on  the  same  obligation  against  the  other. 
Rights  of  firm  and  individual  creditors  to  respective  assets. 

Cited  in  Clark  v.  Stanwood,  166  Mass.  379,  34  L.R.A.  378,  44  N.  E.  537,  hold- 
ing the  estate  of  insolvent  partner,   not   liable   for    partnership   debts   after   dis- 


1  E.  R.  C.  175]        NOTES  ON  ENGLISH  RULING  CASES.  22 

charge  of  such  partner;  Bank  of  Toronto  v.  Hall,  6  Ont.  Rep.  644,  holding  that  in 
the  case  of  an  insolvent  partnership  the  joint  estate  must  go  to  satisfy  joint 
debts  and  individual  debts  must  be  paid  out  of  the  separate  estate;  Moorehouse 
v.  Bostwick,  11  Ont.  App.  Rep.  76,  on  the  right  of  joint  creditors  to  follow  the 
estate  of  a  retiring,  partner ;  McDonagh  v.  Jephson,  16  Ont.  App.  Rep.  107,  hold- 
ing that  on  an  execution  against  three  persons  two  of  whom  are  partners  the 
writ  covers  partnership  and  individual  property  or  the  separate  property  of  any 
one  or  two  of  them,  and  that  the  effect  is  to  create- equities  among  the  partners 
and  not  the  creditors;  Henderson  v.  Killey,  17  Ont.  App.  Rep.  456,  on  the  equities 
among  partners  as  distinguished  from  those  among  creditors  and  their  right  to 
participate  in  partnership  effects  independent  of  judgment;  Re  McRae,  L.  R.  25 
Ch.  Div.  16,  53  L.  J.  Ch.  N.  S.  1132,  49  L.  T.  N.  S.  544,  32  Week.  Rep.  304,  hold- 
ing that  an  action  for  the  administration  of  separate  estate  of  partner  cannot 
be  based  on  a  partnership  debt  such  debt  not  being  joint  and  several. 

Cited  in  note  in  4  Eng.  Rul.  Cas.  122,  on  respective  rights  of  joint  and  separate 
creditors  of  bankrupt  partnership. 
Pleadings  in  abatement  as  affected  by  Judicature  Act. 

Cited  in  Chard  v.  Rae,  18  Ont.  Rep.  371,  on  the  effect  of  the  Judicature  Act  on 
the  plea  in  abatement  for  want  of  parties;  Robb  v.  Murray,  13  Ont.  Pr.  Rep. 
397,  holding  that  since  the  passage  of  the  Judicature  Act  no  plea  or  defense  can 
be  pleaded  in  abatement;  Campbell  v.  Farley,  IS  Ont.  Pr.  Rep.  97,  holding  that 
the  Judicature  Act  did  not  convert  into  a  joint  and  several  debt  that  which  had 
been  theretofore  merely  joint,  thus  a  surviving  partner's  right  against  the  estate 
of  deceased  partner  with  respect  to  partnership  debts  precluded  the  making  of 
the  administratrix  a  party  to  an  action  on  partnership  liability;  Scarlett  v. 
Nattrcss,  23  Ont.  App.  Rep.  297,  holding  that  where  a  joint  covenantee  assigns 
his  interest  in  the  covenant  to  the  other  covenantees  such  other  covenantees  may 
sue  on  covenant  without  joining  the  assigning  covenantee  in  the  action;  Beard- 
more  v.  Toronto,  19  Ont.  L.  Rep.  139,  holding  that  a  stay  of  proceedings  may  not 
be  had  for  nonjoinder  of  parties,  the  Judicature  Act  having  done  away  with  all 
defenses  and  objections  arising  from  misjoinder  or  non-joinder  of  parties;  British 
South  Africa  Co.  v.  Campanhia  de  Mocambique  [1893]  A.  C.  602,  63  L.  J.  Q.  B. 
N.  S.  70,  6  Reports,  1,  69  L.  T.  N.  S.  604,  on  Judicature  Acts  not  having  changed 
or  affected  the  rights  of  parties  being  rules  of  procedure  merely. 
Right  to  an  order  compelling  joinder  of  parties. 

Cited  in  Toronto  &  H.  Nav.  Co.  v.  Silcox,  12  Ont.  Pr.  Rep.  622,  holding  that  a 
defendant  who  has  been  sued  as  being,  solely  liable  has  not  the  right  to  bring 
in  an  undisclosed  party  as  third  party;  Robb  v.  Murray,  13  Ont.  Pr.  Rep.  397, 
holding  that  an  order  compelling  plaintiff  to  join  a  person  as  defendant  jointly 
entitled  in  the  subject  of  a  counterclaim  is  proper  under  the  statute;  Pilley  v. 
Robinson,  L.  R.  20  Q.  B.  Div.  155,  57  L.  J.  Q.  B.  N.  S.  54,  58  L.  T.  N.  S.  110,  36 
Week.  Rep.  269,  holding  that  a  defendant  has  the  right  to  have  persons  jointly 
liable  joined  in  the  action  as  co-defendants  but  not  a  third  party;  Wilson  v. 
Balcarres  Brook  S.  S.  Co.  [1893]  1  Q.  B.  422,  4  Reports,  286,  6S  L.  T.  N.  S.  312, 
41  Week.  Rep.  486,  7  Asp.  Mar.  L.  Cas.  321,  holding  that  the  defendants  could 
not  as  of  right  have  a  co-contractor  joined  as  a  defendant  he  being  a  foreigner 
outside  the  jurisdiction  of  the  court  and  that  the  Judicature  Act  altered  the 
form  rather  than  the  substance,  leaving  the  right  to  apply  for  joinder  though 
abatement  pleas  were  thereby  abolished. 
Joinder  on  joint  and  several  liability. 

Cited  in  Gilderslecve  v.  Balfour,  15  Ont.  Pr.  Rep.  293,  holding  in  a  statement 


23  NOTES  ON  ENGLISH  RULING  CASES.       [1  E.  R.  C.   183 

■  of  claim  against  the  members  of  a  nominal  corporation,  the  liability  alleged  is 
joint  only,  that  all  the  members  must  be  joined  as  defendants  the  plaintiff  not 
having  the  right  to  sue  such  as  he  thinks  proper ;  Vassie  v.  Chcsley,  33  N.  B.  192. 
holding  that  non-joinder  of  parties  is  not  a  ground  for  nonsuit. 
Nonjoinder  of  defendant  as  ground  for  abatement. 

Cited  in  Vassie  v.  Chesley,  33  N.  B.  192,  holding  that  in  courts  of  inferior 
jurisdiction  non-joinder  of  parties  defendant  in  actions  on  contract,  is  not 
ground  of  nonsuit. 

Cited  in  note  in  1  Eng.  Rul.  Cas.  170,  on  nonjoinder  of  defendants  as  ground 
for  abatement. 
Proper  parties  defendant. 

Cited  in  note  in  1  E.  R.  C.  180,  182,  on  proper  parties  defendant. 

1  E.  R.  C.  183,  MITCHELL  v.  TARBUTT,  5  T.  R.  649,  2  Revised  Rep.  684. 
Former  tort  judgment  as  a  bar  to  subsequent  action  for  the  same  wrong 
against  joint  wrongdoer. 

Cited  in  Holden  v.  Reed,  Smith  (N.  H.)  278,  holding  a  judgment  in  an  action 
against  one  of  persons  compelling  plaintiff  to  pay  them  money  in  order  to  se- 
cure his  release  from  a  wrongful  arrest  was  a  bar  to  an  action  against  another 
a  party  to  the  same  act;  Dodge  v.  Averill,  5  How.  Pr.  8,  holding  that  a  common 
law  in  actions  for  tort  a  party  on  whom  process  was  not  served  and  did  not  ap- 
pear was  a  party  to  the  action,  if  the  right  of  contribution  exists;  Sanderson  v. 
Caldwell,  2  Aik.  (Vt. )  195,  holding  a  judgment  in  an  action  of  trover  which  is 
unsatisfied  is  no  bar  to  another  action  against  a  different  person  for  the  same 
offense;  Murray  v.  Lovejoy,  2  Cliff.  191,  Fed.  Cas.  No.  9963,  holding  a  judgment 
against  a  sheriff  not  satisfied  is  not  a  bar  to  a  subsequent  suit  against  the  attach- 
ing creditor. 

Cited  in  note  in  58  L.R.A.  306,  on  effect  of  failure  to  sue  all  joint  tort  feasors 
on  liability  of  those  sued. 
Election  of  remedies  against  joint  tort  feasors. 

Cited  in  McAvoy  v.  Wright,  137  Mass.  207,  on  party  as  having  right  to  sue 
joint  tort  feasors  jointly  or  separately. 
Nonjoinder  of  parties  as  a  defense. 

Cited  in  Reed  v.  Wilson,  39  Me.  585,  holding  in  an  action  on  a  promissory  note 
a  defendant  could  not  after  pleading  the  general  issue,  raise  an  objection  to  the 
nonjoinder  of  his  joint  promisor  as  defendant;  Low  v.  Mumford,  14  Johns.  42S,  7 
Am.  Dec.  469,  on  nonjoinder  of  parties  when  available  as  a  defense;  Orange  v. 
Brown,  3  Wend.  158,  on  right  to  plead  the  nonjoinder  of  parties  in  abatement 
of  an  action;  White  v.  Smith,  12  Rich.  L.  595,  holding  an  action  for  the  destruc- 
tion of  a  property  may  be  maintained  against  a  member  of  a  partnership  without 
joining  the  others. 

Cited  in  note  in  1  Eng.  Rul,  Cas.  187,  1S8,  on  nonjoinder  of  defendants  as  de- 
fense. 
Joint  or  several  liability  of  joint  masters  of  servant. 

Cited  in  Bostwick  v.  Champion,  11  Wend.  571,  holding  a  joint  action  would 
lie  against  partners  operating  a  stage  line  for  an  injury  received  through   the 
negligence  of  a  driver  although  the  route  was  divided  between  the  parties  and 
each  one  furnished  the  expenses  of  his  section. 
Liability  for  tort  of  partner. 

Cited  in  Parsons  Partn.  4th  ed.  124-126,  on  liability  for  tort  of  partner. 


1  E.  K.  C.  183]        NOTES  ON  ENGLISH  RULING  CASES.  24 

Right  to  avail  of  a  defense  by  a  plea  on  abatement. 

Cited  in  McFarland  v.  McKnight,  6  B.  Mon.  500,  holding  the  nonjoinder  of 
proper  parties  defendant  is  not  available  by  a  plea  in  abatement  in  an  action 
against  several  partners  for  the  loss  of  slaves  through  defendant's  negligent  acts; 
Chalfort  v.  Johnston,  3  Yeates,  16,  holding  in  an  action  on  a  bond  the  sufficiency 
of  the  assignment  could  not  be  raised  where  its  insufficiency  is  not  pleaded  in 
abatement  of  the  action ;  Wetherspoon  v.  Killough,  Mart.  &  Y.  38,  holding  the 
nonjoinder  of  two  joint  parties  in  an  action  by  a  witness  for  his  fees  could  only 
be  taken  advantage  of  by  a  plea  in  abatement;  Bates  v.  Reynolds, -7  Bosw.  685, 
on  the  right  to  plead  nonjoinder  of  defendants  in  abatement  in  an  action  of  tort; 
Petty  v.  Cleveland,  2  Tex.  404;  Pringle  v.  Pr ingle,  130  Pa.  565,  18  Atl.  1024,  25 
W.  N.  C.  297,  47  Phila.  Leg.  Int.  234,  20  Pittsb.  L.  J.  N.  S.  290,— on  defense, 
when  must  be  made  available  by  a  plea  in  abatement. 
Pleading  negligence. 

Cited  in  Lake  Shore  &  M.  S.  R.  Co.  v.  Johnson,  35  111.  App.  430,  holding  alle- 
gations of  negligence  causing  an  injury  to  plaintiff  were  sufficient. 
Remedy  for  tortious  breach  of  contractual  duty. 

Cited  in  Wright  v.  Geer,  6  Vt.  151,  27  Am.  Dec.  538,  holding  in  an  action  for 
a  misfeasance  in  spoiling  work  contracted  to  be  done  by  defendants,  under  joint 
contract  on  part  of  defendants,  tort  will  lie. 

1  E.  R.  C.  188,  SYLVESTER'S  CASE,  7  Mod.  1.30. 
Right  of  alien  enemy  lo  maintain  suit. 

Cited  in  Johnson  v.  Thirteen  Bales,  2  Paine,  639,  Fed.  Cas.  No.  7,415,  holding 
an  alien  enemy  not  here  under  letters  of  safe  conduct  or  under  the  protection  of 
the  government  cannot  maintain  a  suit  and  must  prove  and  plead  such  letters; 
Clarke  v.  Morey,  10  Johns.  69,  on  right  of  alien  to  maintain  an  action  in  time  of 
war;  Society  for  Propagation  of  Gospel  v.  Wheeler,  2  Gall.  105,  Fed.  Cas.  No. 
13,156,  holding  that  if  foreign  corporation  established  in  foreign  country,  sue  in 
our  courts,  and  war  intervene  between  countries  pending  suit  this  is  not  sufficient 
to  defeat  action  unless  it  appears  on  record,  that  plaintiffs  are  not  within  ex- 
ceptions, which  enable  alien  enemy  to  sue. 

1  E.  R.  C.  191,  WARNER  v.  IRBY,  2  Ld.  Raym.  1178. 

1  E.  R.  C.  194,  LAINSON  v.  LAINSON,  5  De  G.  M.  &  G.  754,  3  Eq.  Rep.  43,  1  Jur. 
N.  S.  49,  3  Week.  Rep.  31,  24  L.  J.  Ch.  N.  S.  46,  affirming  the  decision  of  the 
Master  of  the  Rolls,  reported  in  18  Beav.  1,  17  Jur.  1044,  2  Week.  Rep.  82, 
23  L.  J.  Ch.  N.  S.  170. 
Acceleration  of  remainders. 

Cited  in  Robinson  v.  Harrison,  2  Tenn.  Ch.  11,  holding  where,  a  widow  to 
whom  the  husband  has  bequeathed  property  for  life  with  a  remainder  over,  dis- 
sents from  the  will,  it  inures  to  the  benefit  of  the  legatees  in  remainder  by  ac- 
celerating the  time  of  enjoyment  but  not  affecting  the  limitations  otherwise; 
Jull  v.  Jacobs,  L.  R.  3  Ch.  Div.  703,  35  L.  T.  N.  S.  153,  24  Week.  Rep.  947; 
Ajudhia  Buksh  v.  Mussamut  Rukmin  Kuar,  L.  R.  11  Ind.  App.  1, — holding  a 
gift  in  remainder  expectant  upon  the  termination  of  a  life  estate  is  accelerated 
and  not  destroyed  by  reason  of  the  gift  of  the  life  estate  being  void. 

Cited  in  note  in  1  E.  R.  C.  199,  on  acceleration  of  legacy  to  take  effect  in 
future. 


25  NOTES  ON  ENGLISH  RULING  CASES.        [1  E.  R.  C.  203 

The  decision  of  the  Master  of  Rolls  was  cited  in  Rogers's  Estate,  17  Phila.  478, 
42  Phila.  Leg.  Int.  236,  16  W.  N.  C.  228 ;  Randall  v.  Randall,  85  Md.  430,  37  Atl. 
209, — holding  the  renunciation  by  a  widow  of  the  provisions  made  for  her  under 
the  will  accelerated  the  vesting  of  the  gifts  in  remainder;  Holdren  v.  Holdren, 
78  Ohio  St.  276,  18  L.R.A.(N.S.)  272,  85  N.  E.  537,  holding  where  a  wife  elects 
to  take  her  dower  share  instead  of  the  life  estate  under  the  will  and  such  dower 
share  exceeds  the  value  of  the  life  estate,  the  remainder  after  the  life  estate  is 
not  accelerated  but  the  life  estate  sequestered  to  compensate  devisees;  Craven  v. 
Brady,  L.  R.  4  Eq.  209,  36  L.  J.  Oh.  N.  S.  905,  15  Week.  Rep.  952,  holding  upon 
the  forfeiture  of  a  life  estate  by  a  widow  on  her  remarriage  the  remainders  in  the 
estates  were  accelerated:  Aplin  v.  Stone  [1904]  1  Ch.  543,  73  L.  J.  Ch.  N.  S.  456, 
90  L.  T.  N.  S.  284;  Blatchford  v.  Newberry,  99  111.  11  (dissenting  opinion), — on 
the  application  of  the  doctrine  of  acceleration  of  remainders. 
—  By  revocation  of  particular  estate  devised. 

Cited  in  Lewin  v.  Lewin,  2  N.  B.  Eq.  477,  holding  the  revocation  of  an  annuity 
by  a  codicil  to  a  will  accelerated  the  vesting  of  the  remainders  in  the  legatees; 
Re  Love,  47  L.  J.  Ch.  N.  S.  7S3,  27  Week.  Rep.  39,  holding  same  where  codicil 
revoked  a  life  interest;  Re  Johnson,  3  Reports,  308,  68  L.  T.  N.  S.  20,  holding 
upon  the  revocation  by  a  testator  of  an  estate  devised  for  life,  and  upon  the  death 
of  the  testator,  the  donee  of  the  remainder  in  trust  for  the  children  of  the 
testator  took  effect  immediately;  Stephenson  v.  Stephenson,  54  L.  J.  Ch.  N.  S.  928, 
52  L.  T.  N.  S.  576,  holding  the  revocation  by  a  codicil  of  an  estate  in  remainder 
to  certain  named  persons  accelerated  the  interest  in  which  remainder  would  vest 
if  such  persons  were  not  alive  to  receive  it;  Langfeld's  Estate,  18  Phila.  134,  44 
Phila.  Leg.  Int.  26,  4  Pa.  Co.  Ct.  82,  on  the  acceleration  of  a  remainder  by  the 
testator's  revocation  of  the  life  estate  or  its  determination  by  a  clause  of  forfei- 
ture. 

The  decision  of  the  Master  of  Rolls  was  distinguished  in  Eavestaff  v.  Austin, 
19  Beav.  591,  holding  under  a  will  setting  aside  a  sum  of  money  as  would  provide 
a  certain  annuity,  to  one  person  and  the  capital  to  others  on  her  death,  such  re- 
mainder was  accelerated  by  a  codicil  revoking  the  annuity. 
Construction  of  terms  of  a  will. 

Cited  in  Re  Dawes,  L.  R.  4  Ch.  Div.  210,  on  construing  the  terms  of  a  will. 

1  E.  R.  C.  203,  DAVIS  v.  SAUNDERS,  2  Chitty,  639. 
Nonactionable  injury  arising  from  an   accident. 

Cited  in  Cook  v.  Potter,  2  Mich.  N.  P.  146,  to  point  that  no  one  is  responsible 
for  injury  caused  by  unavoidable  accident,  while  he  is  engaged  in  lawful  business, 
though  injury  was  direct  consequence  of  his  act;  Miller  v.  Martin,  16  Mo.  508,  57 
Am.  Dec.  242,  holding  a  person  setting  fire  to  his  stubble  was  not  liable  for  dam- 
ages where  without  any  fault  on  his  part  it  escapes  to  a  neighbor's  land,  burning 
his  fences;  Brown  v.  Collins,  53  X.  H.  442,  16  Am.  Rep.  372,  holding  a  person 
was  not  liable  for  damages  where  his  horse  became  frightened  at  a  locomotive 
and  ran  away  and  up  onto  the  land  of  another,  doing  damage  there;  Garris  v. 
Portsmouth  &  R.  R.  Co.  24  N.  C.  (2  Ired.  L.)  324,  holding  defendant  company 
could  not  be  held  liable  where,  the  night  being  very  dark,  the  engineer  was  not 
able  to  see  the  steer,  which  was  lying  down  on  the  track,  until  too  late  to  avoid 
the  accident;  Sullivan  v.  Murphy,  2  Miles  (Pa.)  298,  holding  defendant  not 
liable  where  he  accidentally  fell  against  a  stove,  spilling  boiling  water  over 
plaintiff;  Brown  v.  Kendall,  0  Cush.  292,  on  no  cause  of  action  arising  from  an 
accident  occurring  in  the  prosecution  of  a  lawful  act. 


1   E.  R.  C.  203]        NOTES  ON  ENGLISH  RULING  CASES.  26 

Cited  in  note  in  S  E.  R.  C.  412,  on  remoteness  of  damages. 

Distinguished   in   The  Maverick,   1   Sprague,  23,  Fed.  Cas.  No.  9,316,  holding 
defendants  were  liable  where  their  vessel  came  into  an  accidental  collision  with 
another  ship,   the  presence  of  defendant's  ship  in  that  particular  waters  being 
illegal. 
Presumption  of  negligence. 

Annotation  cited  in  Excelsior  Electric  Co.  v.  Sweet,  57  N.  J.  L.  224,  30  Atl. 
553,  holding  that  occurrence  of  accident  does  not  raise  presumption  of  neg- 
ligence, but  where  evidence  which  proves  occurrence  by  which  plaintiff  was  in- 
jured discloses  circumstances  from  which  defendant's  negligence  in  reasonable 
inference  case  is  presented  which  calls  for  defense. 

1  E.  R.  C.  210,  THE  UHLA,  L.  R.  2  Adm.  &  Eccl.  29,  note,  19  L.  T.  N.  S.  89,  37 

L.  J.  Prob.  16,  note. 
Inevitable  accident. 

Cited  in  Downey  v.  Patterson,  38  U.  C.  Q.  B.  513,  on  an  inevitable  accident  as 
giving  rise  to  no  cause  of  action  for  damages. 

Cited  in  note  in   18   E.   R.   C.   736,  on  enhancement  by   inevitable  accident  of 
damages  from  negligence  as  a  defense. 
Jurisdiction  of  admiralty  courts  over  injury  to  land  works. 

Cited  in  The  Curtin,  152  Fed.  588,  holding  that  action  for  injury  to  pier  by 
moving  vessel  is  not  cognizable  in  admiralty;  The  Blackheath  (United  States  v. 
Evans)  195  U.  S.  361,  49  L.  ed.  236,  25  Sup.  Ct.  Rep.  46,  holding  that  admiralty 
has  jurisdiction  of  libel  in  rem  against  vessel  for  damages  caused  by  negligently 
running  into  beacon  in  channel,  although  beacon  is  attached  to  bottom;  San  Jose 
Land  &  Water  Co.  v.  San  Jose  Ranch  Co.  189  U.  S.  158,  47  L.  ed.  760,  23  Sup. 
Ct.  Rep.  487,  holding  that  statute  giving  jurisdiction  to  court  over  action  for 
damage  done  by  ship  does  not  give  jurisdiction  for  damage  done  on  ship;  The 
Teddington,  Stockton,  Adm.  (N.  B.)  495,  holding  the  vice  admiralty  court  had 
jurisdiction  of  a  cause  of  action  for  damages  done  by  a  ship  to  property  upon 
land  and  within  the  limits  of  a  county;  The  Chase,  Young,  Adm.  (N.  S.)  113, 
holding  the  same  where  a  vessel  broke  from  her  moorings  during  a  storm  and 
came  into  collision  with  wharves  where  plaintiff's  property  was  stored. 

Distinguished  in  The  Ottawa,  1  Brown,  Adm.  356,  Fed.  Cas.  No.  10,616,  hold- 
ing that  action  will  not  lie  in  admiralty  against  vessel  to  recover  damage  done 
by  her  to  wharf  projecting  into  navigable  water;  The  Maud  Webster,  8  Ben.  547, 
Fed.  Cas.  No.  9,302,  holding  that  admiralty  court  had  no  jurisdiction  over  action 
for  injury  to  derrick  used  in  constructing  pier  by  being  struck  by  vessel  as  injury 
was  not  done  upon  water. 

1  E.  R.  C.  216,  FORWARD  v.  PITTARD,  1  T.  R.  27,  1  Revised  Rep.  146. 

Act  of  God,  what  constitutes. 

Cited  in  Kirby  v.  Wylie,  108  Md.  501,  21  L.R.A.(N.S.)  129,  129  Am.  St.  Rep. 
451,  70  Atl.  213,  holding  a  covenant  in  a  lease  requiring  lessor  to  rebuild  in  case 
premises  were  destroyed  by  an  act  of  God  did  not  apply  where  the  building  falls 
to  pieces  by  gradual  decay  from  natural  causes;  Polak  v.  Pioche,  35  Cal.  416,  95 
Am.  Dec.  115,  considering  what  may  be  said  to  be  an  act  of  God;  Reed  v.  Hatch, 
55  N.  H.  327,  7  Legal  Gaz.  301,  on  act  of  God  rendering  an  act  impossible  as  ex- 
cusing the  duty  to  perform;  Baldwin  v.  New  York  L.  Ins.  &  T.  Co.  3  Bosw.  530. 
holding  that  death  which  prevented  the  insured  from  complying  with  the  terms 


27  NOTES  ON    ENGLISH  RULING  CASKS.        [1   E.  R.  C.  216 

•of  the  insurance  contract  was  an  act  of  God;  Merritt  v.  Earle,  29  X.  Y.  115,  SO 
Am.  Dec.  2H2.  holding  that  by  "act  of  God"  is  meant  something  which  operates 
without  any  aid  or  interference  from  man;  Hays  v.  Kennedy,  41  Pa.  378,  80 
Am.  Dec.  027,  20  Phila.  Leg.  Int.  11G,  to  the  point  that  "Act  of  God"  is  such  one 
as  could  not  happen  by  intervention  of  man,  as  storms,  lightning  ami  tempests. 

Cited  in  note  in  1  E.  R.  C.  215,  on  what  constitutes  an  inevitable  accident. 

Cited  in  2  Underbill  Land  &  T.  900,  on  "act  of  God"  as  acts  which  could  not 
happen  by  intervention  of  man,  as  storms,  lightnings,  and  tempests. 

—  Fires. 

Cited  in  Clay  County  v.  Simonsen,  1  Dak.  387,  40  X.  W.  592,  holding  that  acci- 
dental fire,  not  caused  by  lightning,  is  not  irresistible  super-human  cause,  or 
act  of  God;  Niblo  v.  Biusse,  44  Barb.  54,  holding  an  accidental  fire  would  not  be 
deemed  the  act  of  God  so  as  to  excuse  the  nonperformance  cf  a  contract;  Hulett 
v.  Smith,  42  Barb.  230,  holding  same  so  as  to  excuse  the  liability  of  an  innkeeper 
for  the  destruction  of  property  of  a  guest. 

—  Distinguished  from  inevitable  accident. 

Cited   in.  Morel   v.   Roe,    R.   M.   Charlt.    (Ga.)    19,   as   distinguishing   between 
inevitable  accident  and  the  act  of  God;  Hodgson  v.  Dexter,  1  Cranch,  C.  C.  109, 
Fed.  Cas.  No.  0,505,  on  what  is  an  inevitable  casualty. 
Act  of  God  relieving  carrier  from  liability; 

Cited  in  Central  R.  Co.  v.  Hall,  124  Ga.  322,  4  L.R.A.(X.S.)  898,  110  Am.  St. 
Rep.  170,  52  S.  E.  079,  4  Ann.  Cas.  128,  holding  a  carrier  not  relieved  from  lia- 
bility for  an  accident  caused  by  the  engineer  becoming  suddenly  insane  and  run- 
ning train  at  an  excessive  rate  of  speed;  Fergusson  v.  Brent,  12  Md.  9,  79  Am.  Dec. 
582,  holding  a  carrier  not  relieved  of  liability  as  by  the  act  of  God  where  vessel 
strikes  a  hidden  rock  in  a  harbor  there  being  a  buoy  near  by  to  mark  its 
presence;  Hays  v.  Kennedy,  3  Grant,  Cas.  351,  holding  that  unavoidable  dangers 
of  navigation  means  dangers  unavoidable  where  all  precautions,  care  and  skill, 
usually  demanded  of  carriers  has  been  exercised;  Reaves  v.  Waterman,  2  Speers, 
L.  197,  42  Am.  Dec.  304,  holding  same  where  buoy  had  drifted  so  as  to  no  longei 
mark  the  location  of  the  rock;  Friend  v.  Woods,  0  Gratt.  189,  52  Am.  Dec.  119. 
holding  a  carrier  was  not  relieved  from  liability  where  a  cargo  was  lost  when  the 
vessel  stranded  on  a  bar  recently  formed  in  the  navigable  channel  and  of  which 
the  master  had  no  knowledge;  Alexander  v.  Greene,  7  Hill,  533;  Coosa  River  S. 
B.  Co.  v.  Barclay,  30  Ala.  120, — on  common  carrier  as  being  excused  from  liability 
where  the  loss  is  traceable  to  an  act  of  God. 

Cited  in  1  Beach  Contr.  275,  on  fire  as  act  of  God  exempting  carrier  from  lia- 
bility; 1  Hutchinson  Carr.  3d  ed.  296,  on  necessity  that  human  agency  does  not 
intervene  to  make  carrier  liable  for  loss  by  act  of  God;  Porter  Bills  of  L.  129, 
on  what  is  an  act  of  God  excusing  liability  of  carrier;  5  Thompson  Neg.  893,  on 
liability  of  carrier  for  loss  by  act  of  God. 

—  Accidental   burning   of   goods    in    transit. 

Cited  in  Hale  v.  New  Jersey  Steam  Nav.  Co.  15  Conn.  539,  39  Am.  Dec.  398, 
holding. a  carrier  was  not  relieved  from  liability  where  plaintiff's  property  was 
destroyed  by  the  burning  of  defendant's  boat,  as  arising  from  an  act  of  God. 

—  Storms  and  floods. 

Cited  in  Mein  v.  West,  T.  U.  P.  Charlt.  (Ga.)  170,  holding  a  carrier  was  re- 
lieved from  liability  for  an  injury  caused  by  a  severe  storm;  McClary  v.  Sioux 
City  &  P.  R.  Co.  3  Neb.  44,  19  A.  R.  631,  holding  a  carrier  was  not  liable  for 
injuries  where  a  passenger  was  injured  by  the  upsetting  of  a  car  from  a  sudden 


1  E.  R.  C.  216]        NOTES  ON  ENGLISH  RULING  CASES.  28 

violent  gust  of  wind;  New  Brunswick  S.  B.  &  Canal  Transp.  Co.  v.  Tiers,  24  N. 
J.  L.  697,  64  Am.  Dec.  394,  holding  a  carrier  was  not  relieved  from  liability 
where  a  storm  caused  such  an  unusually  low  tide  that  the  vessel  struck  a  beam 
or  timber  negligently  protruding  from  the  wharf,  sinking  the  vessel;  Egan  v. 
Central  Vermont  R.  Co.  81  Vt.  141,  16  L.R.A.(N.S.)  928,  130  Am.  St.  Rep.  1031, 
69  Atl.  732,  holding  that  railroad  company  was  not  liable  for  injury  to  abutting 
land  caused  by  inability  of  culvert  to  carry  off  extraordinary  flood,  as  sole 
proximate  cause  of  damage  was  act  of  God;  Michaels  v.  New  York  C.  R.  Co.  30 
N.  Y.  564,  86  Am.  Dec.  415,  holding  a  carrier  was  not  relieved  from  liability 
where  goods  damaged  by  an  extraordinary  and  unusual  rise  in  the  river,  which 
flooded  their  warehouse,  where  but  for  a  negligent  detention  the  goods  would  not 
have  been  in  the  warehouse;  Price  v.  Hartshorn,  44  Barb.  655,  holding  a  violent 
storm,  which  injured  the  cargo  was  such  an  act  of  God  as  to  affect  the  carrier's 
liability  in  absence  of  a  special  contract;  Cormack  v.  New  York,  N.  H.  & 
H.  R.  Co.  196  N.  Y.  442,  24  L.R.A.  (N.  S.)  1209,  90  N.  E.  56,  17  Ann.  Cas.  949, 
holding  that  snow  storm  of  such  severity  as  that  it  delays  train,  although  rail- 
road company  made  strenuous  efforts  to  clear  track,  must  be  classed  as  act  of 
God;  McGraw  v.  Baltimore  &  O.  R.  Co.  18  W.  Va.  361,  41  Am.  Rep.  696,  holding 
sudden  freezing  weather  causing  a  loss  of  a  shipment  of  potatoes  was  not  such  an 
act  of  God  as  to  relieve  the  carrier  from  liability  for  its  loss;  Tompkins  v.  The 
Dutchess  of  Ulster,  Fed.  Cas.  No.  14,087a,  holding  on  facts  the  storm  was  not  of 
such  a  nature  as  to  relieve  defendant  from  liability  for  the  loss  of  cargo  as  an 
act  of  God;  Smith  v.  Whiting,  3  U.  C.  Q.  B.  O.  S.  597,  holding  a  carrier  was  not 
liable  for  the  loss  of  a  cargo  during  a  violent  storm  there  being  no  negligence  on 
the  part  of  carrier  to  trying  to  prevent  the  loss. 

—  Peril  of  the  sea  or  of  river. 

Cited  in  Jones  v.  Pitcher,  3  Stew.  &  P.  (Ala.)  135,  24  Am.  Dec.  716,  holding 
defendant  was  not  liable  for  the  loss  of  plaintiff's  goods  due  to  a  collision  with 
another  boat  without  blame  attaching  to  defendant,  it  being  a  peril  of  river 
navigation;  Plaisted  v.  Boston  &  K.  S.  Nav.  Co.  27  Me.  132,  46  Am.  Dec.  587, 
holding  the  loss  of  goods  by  a  collision  between  vessels  at  sea  where  no  fault  was 
imputable  to  either  was  imputable  to  the  perils  of  the  sea;  Gordon  v.  Little,  8 
Serg.  &  R.  533,  11  Am.  Dec.  632,  holding  carrier  was  relieved  from  liability  on 
the  ground  that  the  injury  was  due  to  a  peril  of  the  river  where  the  vessel  struck 
a  sunken  log  and  sunk;  Hays  v.  Kennedy,  41  Pa.  378,  80  Am.  Dec.  627,  20  Phila. 
Leg.  Int.  116,  3  Grant  Cas.  351,  holding  a  shipper  could  not  recover  for  the  loss 
of  his  goods  when  the  vessel  was  run  into  and  sunk  where  the  bill  of  lading  ex- 
cepted liability  for  the  unavoidable  dangers  of  the  river. 

—  Act  of  public  enemy. 

Cited  in  Hubbard  v.  Harnden  Exp.  Co.  10  R.  I.  244,  holding  a  carrier  was  not 
liable  for  the  nondelivery  of  goods  where  they  were  taken  from  their  possession 
by  the  officials  of  the  Confederate  government  and  sold  for  nonpayment  of 
duties  levied  on  them. 

Cited  in  2  Kinkead  Torts,  1176,  act  of  public  enemy  as  excusing  carrier  of 
goods  from  liability  for  loss;  Porter  Bills  of  L.  223,  on  what  are  not  losses  by 
the  public  enemy;  Porter  Bills  of  L.  224,  on  exception  against  loss  by  public 
enemy  as  not  relieving  carrier  from  results  of  his  negligence;  5  Thompson  Nig. 
895,  on  liability  of  common  carrier  for  loss  by  public  enemies. 
Inability  of  common  carrier. 

Cited  in  Colsch  v.  Chicago,  M.  &  St.  P.  R.  Co.  149  Iowa,  176,  34  L.R.A.  (N.S.) 
1013,  127  N.  W.  198,  Ann.  Cas.  1912C,  915,  to  the  point  that  carrier  is  held  to  be 


29  NOTES  ON  ENGLISH  RULING  CASES.       [1  E.  C.  R.  216 

insurer  of  safety  of  property  while  he  has  it  in  his  possession  as  carrier;  Rowland 
v.  Miln,  2  Hilt.  150,  holding  that  a  common  carrier  is  liable  for  goods  entrusted 
to  him  for  delivery  under  all  events  unless  they  are  lost  by  act  of  God  or  the 
public  enemies;  Mallory  v.  Tioga  R.  Co.  39  Barb.  488,  holding  a  carrier  liable 
where  on  the  wreck  of  train  from  an  unknown  cause  the  property  of  the  plaintiff 
was  damaged  and  partially  lost;  Iloneyman  v.  Oregon  &  C.  R.  Co.  13  Or.  352, 
57  Am.  Rep.  20,  10  Pac.  628,  holding  a  common  carrier  was  not  liable  as  such  for 
an  accidental  injury  to  a  dog  carried  for  the  accommodation  of  a  passenger; 
Klauber  v.  American  Exp.  Co.  21  Wis.  21,  91  Am.  Dec.  452,  holding  carrier  was 
liable  for  goods  injured  by  rain  while  removing  from  train,  the  goods  being 
packed  in  the  usual  way;  Fitch  v.  Newberry,  1  Dougl.  (Mich.)  1,  40  Am.  Rep. 
33;  Lindsley  v.  Chicago,  M.  &  St.  P.  R.  Co.  36  Minn.  539,  1  Am.  St.  Pep.  692,  33 
X.  W.  7;  Moses  v.  Norris,  4  N.  H.  304;  Elkins  v.  Boston  &  M.  R.  Co.  23  N.  H. 
275;  Franklin  F.  Ins.  Co.  v.  Jenkins,  3  Wend.  130;  Stevenson  v.  Gildersleeve,  2 
U.  C.  C.  P.  495;  Moses  v.  Boston  &  M.  R.  Co.  24  N.  II.  71,  55  Am.  Dec.  222  — 
holding  that  if  goods  delivered  to  carrier  for  shipment  are  held  back  in  ware- 
house by  order  of  owner,  carrier  is  not  liable  for  their  loss  as  carrier,  but  as  de- 
pository only:  Chesapeake  &  O.  R.  Co.  v.  Pew,  109  Va.  288,  64  S.  E.  35,  holding 
that  under  statute  liability  of  common  carrier  of  goods  is  that  of  insurer  except 
against  losses  occasioned  by  act  of  God,  or  public  enemy,  or  of  shipper,  or  nature 
or  inherent  qualities  of  goods,  and  contract  with  carrier  limiting  liability  is  void ; 
Liver  Alkali  Co.  v.  Johnson,  L.  R.  9  Exch.  338,  43  L.  J.  Exch.  X.  S.  216,  31  L.  T. 
N.  S.  95,  2  Asp.  Mar.  L.  Cas.  332  (affirming  L.  R.  7  Exch.  N.  S.  267,  41  L.  J. 
Exch.  N.  S.  110);  Hartwell  v.  Northern  Pacific  Exp.  Co.  5  Dak.  463,  3  L.R.A. 
34:i,  41  N.  W.  732, — on  the  liability  of  a  common  carrier;  Marable  v.  Southern  R. 
Co.  142  N.  C.  557,  55  S.  E.  355,  distinguishing  between  the  liability  of  a  carrier 
of  goods  and  a  carrier  of  passengers;  Thurman  v.  Wells,  F.  &  Co.  18  Barb.  500: 
Cook  v.  Gourdin.  2  Nott.  &  M'C.  19  (dissenting  opinion)  ;  Joy  v.  Allen,  2  Woodb. 
&  M.  303,  Fed.  Cas.  No.  7,552;  Rixford  v.  Smith,  52  N.  H.  355,  13  Am.  Rep.  42  — 
on  carrier  as  an  insurer  of  the  safe  transportation  of  goods;  Nugent  v.  Smith,  L. 
R.  1  C.  P.  Div.  19,  423,  1  Eng.  Rul.  Cas.  216,  45  L.  J.  C.  P.  N.  S.  697,  34  L.  T.  N. 
S.  827,  25  Week.  Rep.  117,  24  Week.  Rep.  237,  3  Asp.  Mar.  L.  Cas.  198,  holding 
the  owner  of  a  vessel  carrying  an  animal  for  hire  was  liable  for  injuries  without 
regard  to  whether  or  not  he  was  a  common  carrier. 

Cited  in  notes  in  1  E.  R.  C.  232,  on  losses  to  goods  for  which  common  carrier 
is  liable;   5  E.  R.  C.  262,  203,  on  extent  of  carrier's  liability;   5  Eng.  Rul.  Cas. 
344,  on  special  limitations  of  liability  of  carrier. 
—  Loss  by  perils  of  navigation. 

Cited  in  Fish  v.  Chapman,  2  Ga.  349,  46  Am.  Dec.  393,  holding  a  carrier  was 
liable  where  the  goods  were  lost  by  the  overturning  of  a  wagon  while  fording  a 
river,  although  without  fault  of  defendant;  Fisher  v.  Clisbee,  12  111.  344,  holding 
a  ferryman  liable  for  the  loss  of  a  horse  while  crossing  a  river  although  he  was 
guilty  of  no  negligence;  Daggett  v.  Shaw,  3  Mo.  264,  25  Am.  Dec.  439,  holding 
owners  of  a  river  steamer  liable  where  goods  were  lost  because  of  a  collision  with 
another  boat  where  the  goods  were  stored  in  an  exposed  position:  McArthur  v. 
Sears,  21  Wend.  190,  holding  the  owners  of  a  steamboat  were  not  relieved  from 
liability  where  the  vessel  was  stranded,  the  master  taking  the  light  of  a  stranded 
vessel  for  the  beacon  light,  on  the  ground  that  it  was'an  inevitable  accident  with 
out  the  intervention  of  man;  Charleston  &  C.  S.  B.  Co.  v.  Bason,  Harp,  L.  262, 
holding  a  carrier  is  liable  for  damage  to  property  occurring  when  the  vessel 
grounded  on  a  bar  and  the  water  entered  the  vessel:   Ewart  v.  Street,  2  Bail.  L. 


1  E.  R.  C.  216]        NOTES  ON  ENGLISH  RULING   CASES.  30 

157,  23  Am.  Dec.  131,  holding  carrier  liable  for  damages  where  on  the  flowing  out 
of  the  tide  the  vessel  which  was  in  a  dock  settled  on  the  bow  allowing  the  water  to 
run  forward  damaging  plaintiff's  goods;  Turney  v  Wilson,  7  Yerg.  340,  27  Am. 
Dec.  515,  holding  one  undertaking  to  carry  a  cargo  of  cotton  for  hire  is  liable 
as  a  common  carrier  where  the  vessel  is  sunk  and  the  cargo  damaged. 

—  Loss  by  fire. 

Cited  in  Angle  v.  Mississippi  &  M.  River  R.  Co.  18  Iowa,  555;  Moses  v.  Boston 
&  M.  R.  Co.  24  N.  H.  71,  55  Am.  Dec.  222;  Ladue  v.  Griffitli,  25  N.  Y.  364,  82  Am. 
Dec.  360;  Clarke  v.  Needles,  25  Pa.  338;  Southern  Exp.  Co.  Newby,  36  Ga.  635,  91 
Am.  Dec.  783, — holding  a  common  carrier  was  liable  for  the  destruction  of  goods 
by  fire  in  their  warehouse  though  through  fault  of  carrier;  New  Jersey  Steam 
Nav.  Co.  v.  Merchants'  Bank,  6  How.  344,  12  L.  ed.  465,  holding  defendant  car- 
rier was  liable  for  the  loss  of  property  where  boat  burned  at  sea;  Chevallier  v. 
Straham,  2  Tex.  115,  47  Am.  Dec.  639,  holding  a  carrier  of  cotton  liable  for  its 
loss  where  it  was  placed  so  close  to  a  camp  fire  that  when  a  wind  sprung  up 
during  the  night  it  was  set  on  fire. 

Cited  in  1  Hutchinson  Car.  3d  ed.  299,  on  liability  of  carrier  for  loss  by  fire, 
explosion  or  collision;  Porter  Bills  of  L.  161,  on  liability  of  carrier  for  loss  by 
lire. 

Distinguished  in  Hart  v.  Chicago  &  N.  W.  R.  Co.  69  Iowa,  485,  29  N.  W.  597, 
holding  defendant  carrier  was  not  liable  where  horses  of  plaintiff  were  burned 
to  death  by  a  fire  set  in  the  car  by  a  servant  of  plaintiff  traveling  with  the  car; 
Torrance  v.  Smith,  3  U.  C.  C.  P.  411,  holding  carrier  by  reason  of  statute  was  re- 
lieved of  liability  for  the  loss  of  a  cargo  caused  by  an  accidental  fire. 

—  Legal  and  contractual  liability. 

Cited  in  School  Dist.  v.  Boston,  H.  &  E.  R.  Co.  102  Mass.  552,  3  Am.  Rep.  502, 
holding  a  contract  for  carriage  of  property  at  risk  of  shipper  does  not  relieve 
carrier  from  liability  for  injury  to  the  property  where  injury  due  to  carrier's 
negligence;  Hollister  v.  Nowlen,  19  Wend.  234,  32  Am.  Dec.  455;  Cole  v.  Goodwin, 
19  Wend.  251,  32  Am.  Dec.  470, — holding  a  notice  that  all  baggage  was  carried  at 
the  risk  of  the  passenger  did  not  excuse  the  carrier  for  the  loss  of  passenger's 
trunk;  Mercantile  Mut.  Ins.  Co.  v.  Chase,  1  E.  D.  Smith,  115,  on  the  right  to  limit 
a  common  carrier's  liability  by  express  contracts;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Levi, 
76  Tex.  337,  8  L.R.A.  323,  18  Am.  St.  Rep.  45,  13  S.  W.  191,  holding  a  carrier 
could  relieve  himself  of  liability  for  the  failure  to  deliver  property,  where  strikes 
took  possession  of  and  held  up  and  even  destroyed  trains. 

Cited  in  1  Hutchinson  Car.  3d  ed.  406,  on  limitation  of  carrier's  liability  by 
contract;  Porter  Bills  of  L.  131,  on  losses  within  exceptions  from  liability  in  bill 
of  lading. 
liability  of  exceptional  bailees  for  accident. 

Cited  in  Sibley  v.  Aldrich,  33  N.  H.  553,  66  Am.  Dec.  745,  holding  defendant 
innkeeper  could  not  relieve  himself  from  liability  for  an  injury  to  a  horse  in  his 
possession  by  proving  that  there  was  an  actual  negligence  on  his  part. 
Measure  of  carrier's  liability  for  loss  of  goods. 

Cited  in  Gillingham  v.  Dempsey,  12  Serg.  &  R.  183,  holding  in  an  action  for  a 
loss  in  carrying  goods  the  measure  of  damages  is  the  net  value  of  the  goods  at 
the  port  of  destination. 
Liability  of  common  carrier  when  presumed. 

Cited  in  Agnew  v.  The  Contra  Costa,  27  Cal.  425,  87  Am.  Dec.  87,  on  the  liabil- 
ity of  a  common  carrier  as  being  presumed  unless  it  is  made  to  appear  that  the 


31  NOTES  ON  ENGLISH  RULING  CASES.       [1  E.  R.  C.  218 

injury  could  not  have  happened  by  the  intervention  of  human  means;  Hall  v. 
Cheney,  30  N.  II.  2G;  Tarbox  v.  Eastern  S.  B.  Co.  50  Me.  339,— holding  the  burden 
of  proof  rests  on  a  carrier  to  show  that  any  damage  did  not  occur  to  the  goods 
while  in  their  possession;  Arent  v.  Squire,  1  Daly,  347,  on  whom  is  cast  the 
burden  of  showing  negligence  or  its  absence  in  the  care  of  the  property  where  a 
bailee  for  hire  fails  to  return  all  goods  entrusted  to  him;  Lamb  v.  Camden  &  A. 
R.  &  Transp.  Co.  2  Daly,  454,  holding  that  a  common  carrier  was  liable  for  the 
loss  of  goods,  separate  from  his  contract  of  carriage,  and  there  was  a  presump- 
tion of  negligence  where  property  was  lost  by  the  carrier. 
Presumption  as  to  negligence  of  warehouseman. 

Cited  in  Schmidt  v.  Blood,  9  Wend.  2GS,  24  Am.  Dec.  143,  holding  the  burden 
of  showing  negligence  on  the  part  of  a  warehouseman  rests  on  the  owner  of  the 
damaged  property. 
Who  are  common  carriers. 

Cited  in  Collier  v.  Langan  &  T.  Storage  &  Moving  Co.  147  Mo.  App.  700,  127 
S.  W.  435,  holding  that  common  carrier  is  any  one  who  for  hire,  undertakes  to 
transport  goods  of  such  as  choose  to  employ  him,  and  includes  carters  and  ex- 
pressmen. 

Cited  in  1  Hutchinson  Car.  3d  ed.  54,  on  necessity  that  employment  of  common 
carrier  be  public  in  its  nature;  1  Hutchinson  Car.  3d  ed.  68,  as  to  when 
wharfingers,  warehousemen  and  forwarders  of  freight  are  common  carriers. 

1  E.  R.  C.  218,  NUGENT  v.  SMITH,  L.  R.  1  C.  P.  Div.  423,  3  Asp.  Mar.  L.  Cas. 
]98,  34  L.  T.  N.  S.  827,  25  Week.  Rep.  117,  45  L.  J.  Q.  B.  N.  S.  697,  reversing 
the  decision  of  the  Court  of  Common  Pleas,  reported  in  L.  R.  1  C.  P.  Div.  19, 
24  Week.  Rep.  237,  45  L.  J.  Q.  B.  N.  S.  19. 
Liability  of  common  carrier. 

Cited  in  The  Svend,  1  Fed.  54,  holding  that  carrier  is  not  relieved  from  liability 
where  cargo  of  iron  was  injured  by  salt  water,  owing  to  improper  stowage  and 
defective  construction  of  vessel  because  of  exceptions  in  bill  of  lading  against 
liability  because  of  breakage,  leakage  and  rust;  The  E.  A.  Shores,  Jr.  73  Fed. 
342,  on  liability  of  vessel  as  a  common  carrier  for  the  loss  of  cargo;  Nordheinier 
v.  Alexander,  19  Can.  S.  C.  248;  The  Prussia,  88  Fed.  531, — on  a  carrier  as  not 
liable  for  a  loss  resulting  from  inherent  defects  in  the  goods  themselves;  Faucher 
v.  Wilson,  t;S  X.  H.  338,  39  L.R.A.  431,  38  Atl.  1002,  on  a  common  carrier  as  not 
liable  for  losses  happening  from  the  operation  of  natural  causes;  Central  R.  Co. 
v.  Hall,  124  Ga.  322,  4  L.R.A.  (N.S.)  89S,  110  Am.  St.  Rep.  170,  52  S.  E.  679,  4 
Ann.  Cas.  128,  holding  that  carrier  is  liable  for  loss  of  goods  caused  by  act  of 
engineer  in  running  at  dangerous  speed  although  engineer  was  insane  at  time: 
Roussel  v.  Aumais,  Rap.  Jud.  Quebec  18  C.  S.  474,  holding  owner  of  ferry  not 
liable  for  value  of  horse  which  became  frightened,  jumped  overboard  and  was 
drowned;  Little  Rock,  M.  R.  &  T.  R.  Co.  v.  Talbot,  47  Ark.  97,  14  S.  W.  471,  hold- 
ing that  when  common  carrier  contracts  for  exemption  from  liability  for  injury 
from  fire  he  is  bound  to  exercise  ordinary  diligence  to  prevent  such  injury. 
Brown  v.  Great  Western  R.  Co.  2  Ont.  App.  64,  holding  that  railroad  company 
was  liable  for  injury  caused  conductor  of  train  on  road  which  its  tracks  crossed. 
where  it  failed  to  stop  train  for  three  minutes  before  crossing  in  accordance  with 
statute;  Chicago  &  N.  W.  R.  Co.  v.  Hoag,  90  111.  339,  holding  that  railroad  com- 
pany is  liable  for  injury  to  another's  property  caused  by  freezing  of  waste  water 
turned  onto  such  property  by  company. 

Cited  in  notes  in  18  L.R.A.  (N.S.)    93,  on  carrier  as  insurer  of  live  stock;   1 


1   E.  R.  C.  21S]        NOTES  ON  ENGLISH  RULING  CASES.  32 

E.  R.  C.  232,  233,  on  losses  to  goods  for  which  common  carrier  is  liable;  3  E. 
R.  C.  142,  on  liability  of  carrier  of  livestock:  5  E.  R.  C.  262,  263,  on  extent  of 
carrier's  liability;  24  E.  R.  C.  371,  on  limitation  of  liability  in  charter  party  or 
bill  of  lading. 

Cited  in  4  Elliott  Railr.  2d  ed.  274,  on  excuses  for  failure  of  carrier  to  deliver 
goods;  4  Elliott  Railr.  2d  ed.  299,  on  nonliability  of  carrier  for  injuries  to  live 
stock  arising  from  inherent  nature  of  stock;  4  Elliott  Railr.  2d  ed.  753,  on  action 
for  damages  as  remedy  for  carrier's  refusal  to  carry. 

The  decision  of  the  Court  of  Common  pleas  was  cited  in  The  Albany,  44  Fed. 
431,  holding  that  salvor  is  bound  to  take  such  care  of  property  saved  as  prudent 
person  takes  of  his  own  property  and  is  liable  for  embezzlement  of  such  property 
by  his  servants  or  agents. 
Act  of  God  or  vis  major  as  relieving  carrier  from  liability. 

Cited  in  The  Carlotta,  9  Ben.  1,  Fed.  Cas.  No.  2,413,  holding  the  damage  to 
cargo  by  the  gnawing  of  rats  was  not  such  an  act  of  God  as  to  relieve  the  carrier 
from  liability;  Hamilton  v.  Hudson's  Bay  Co.  1  B.  C.  pt.  2,  p.  4,  on  an  accidental 
loss  as  when  excusing  carriers  from  liability;  Wilson  v.  Canadian  Development 
Co.  9  B.  C.  82,  holding  the  closing  up  of  navigation  was  not  such  ah  act  of  God 
as  would  relieve  carrier  from  liability  for  a  failure  to  deliver  freight;  Garfield 
v.  Toronto,  22  Ont.  App.  Rep.  128,  on  carrier  as  relieved  from  liability  where 
loss  attributable  to  act  of  God. 

Cited  in  note  in  29  L.R.A.(N.S.)  663,  on  burden  of  proof  where  defense  in 
action  for  loss  or  injury  to  goods  during  carriage  in  act  of  God  or  vis  major. 

Cited  in  1  Hutchinson  Car.  3d  ed.  296,  on  necessity  that  human  agency  does  not 
intervene  to  make  carrier  liable  for  loss  by  act  of  God;  1  Hutchinson  Car.  3d  ed. 
323,  on  degree  of  diligence  to  be  exercised  by  carriers  where  goods  have  been 
overtaken  by  disaster:  1  White  Pers.  Inj.  Railr.  37,  on  nonliability  of  railroad 
company  for  injury  from  act  of  God. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Egan  v.  Central  Ver- 
mont R.  Co.  81  Vt.  141,  16  L.R.A.(N.S.)  928,  ,130  Am.  St.  Rep.  1031,  69  Atl. 
732,  holding  that  railroad  company  was  not  liable  for  injury  to  abutting  land 
caused  by  inability  of  culvert  to  carry  off  extraordinary  flood,  as  sole  proximate 
cause  of  damage  was  act  of  God. 
—  Sea  carriers. 

Cited  in  The  Shand,  10  Ben.  294,  Fed.  Cas.  No.  12,702,  holding  a  carrier  was  not 
liable  for  damage  to  cargo  caused  by  a  leak  which  sprung  during  a  storm  at  sea 
and  which  could  not  be  controlled;  Kopitoff  v.  Wilson,  L.  R.  1  Q.  B.  Div.  377,  45 
L.  J.  Q.  B.  N.  S.  436,  34  L.  T.  N.  S.  677,  24  Week.  Rep.  706,  23  Asp.  Mar.  L.  Cas. 
163,  holding  in  every  contract  for  the  conveyance  of  merchandise  by  sea  there  is  an 
implied  warranty  of  seaworthiness. 
What  necessary  to  constitute  one  a  common  carrier. 

Cited  in  Bell  v.  Pidgeon,  5  Fed.  634,  holding  the  owner  of  a  vessel  built  for  his 
own  occupation  was  not  liable  as  a  common  carrier  for  the  loss  of  a  cargo  he 
was  carrying  for  hire,  caused  by  the  swell  of  passing  boats;  Sumner  v.  Caswell,  20 
Fed.  249,  holding  a  ship  chartered  to  carry  the  goods  of  a  single  freighter  upon  a 
particular  voyage  was  not  a  common  carrier;  Collier  v.  Langan  &  T.  Storage  & 
-Moving  Co.  147  Mo.  App.  700,  127  S.  E.  435,  holding  that  "common  carrier"  is 
any  one  who  undertakes  for  hire  to  transport  goods  of  such  as  choose  to  employ 
him,  and  includes  carters  and  expressmen ;  Roussel  v.  Aumais,  Rap.  Jud.  Quebec 
18  C.  S.  474,  holding  that  owner  of  ferry,  rowed  by  employees  temporarily  drop- 
ping regular  duties,  is  not  common  carrier. 


33  NOTES  ON  ENGLISH  RULING  CASES.        [1  E.  R,  C.  236 

Cited  in  Hughes  Adm.  150,  on  ship  as  common  carrier;  1  Hutchinson  Car.  3d 
ed.  44,  on  necessity  that  employment  of  common  carrier  be  public  in  its  nature: 
1  Hutchinson  Car.  3d  ed.  59,  on  action  lying  for  refusal  to  carry  as  essential  to 
make  one  a  common  carrier. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Thompson  v.  New  York 
Storage  Co.  97  Mo.  App.  135,  70  S.  W.  938,  holding  that  person  engaged  in  busi- 
ness of  storage  of  personal  property  and  moving  household  effects  is  not  common 
carrier. 
Act  of  God  or  vis  major. 

Cited  in  The  George  Shiras,  9  C.  C.  A.  511,  17  U.  S.  App.  528,  61  Fed.  300,  to 
the  point  "vis  major"  is  any  irresistible,  natural  cause,  which  cannot  be  guarded 
against  by  ordinary  exertions  of  human  skill  and  prudence;  Gill  v.  Benjamin,  64 
Wis.  362,  54  Am.  Rep.  619,  25  N.  W.  445,  on  when  a  loss  is  attributable  to  the  act 
of  God;  Tennant  v.  Hall,  27  N.  B.  499  (dissenting  opinion),  denning  what  consti- 
tutes vis  major;  Nichols  v.  Marsland,  L.  R.  2  Exch.  Div.  1,  46  L.  J.  Exch.  N.  S. 
174,  35  L.  T.  N.  S.  725,  25  Week.  Rep.  173,  1  Eng.  Rul.  Cas.  262,  holding  defendant 
not  liable  for  damages  where  artificial  pools  which  he  maintained  gave  way  be- 
cause of  an  extraordinary  and  unusual  rainfall,  to  the  damage  of  plaintiff's  land. 

Cited  in  Benjamin  Sales  5th  ed.   570,  on  impossibility  as  excuse  for  nonper- 
formance of  contract. 
Following  prior  decisions. 

Cited  in  Stuart  v.  Bank  of  Montreal,  41  Can.  S.  C.  516,  holding  that  supreme 
court  should  refuse  to  follow  its  own  decisions  only  under  very  exceptional  cir- 
cumstances. 

1  E.  R.  C.  236,  RYLANDS  v.  FLETCHER,  L.  R.  3  H.  L.  330,  19  L.  T.  N.  S.  220,  37 

L.  J.  Exch.  N.  S.  161,  affirming  the  decision  of  the  Exchequer  Chamber,  reported 
in  L.  R.  1  Exch.  265?  4  Hurlst.  &  C.  263,  12  Jur.  N.  S.  603,  14  L.  T.  N.  S. 
523,  14  Week.  Rep.  799,  35  L.  J.  Exch.  N.  S.  154,  which  reverses  the  decision 
of  the  Court  of  Exchequer,  reported  in  3  Hurlst.  &  C.  774,  34  L.  J.  Exch.  N. 
S.  177,  13  L.  T.  N.  S.  121. 
Liability  to  adjoining-  or  adjacent  owner  generally. 

Cited  in  Underwood  v.  Waldron,  33  Mich.  232,  on  the  enjoyment  of  one's  own 
property  to  the  injury  of  adjacent  proprietors;  Garland  v.  Towne,  55  N.  H.  58, 
20  Am.  Rep.  104,  7  Phila.  Leg.  Gaz.  244,  holding  that  owner  of  building  so  erected 
that  its  roof  overhangs  street  is  liable  for  injury  to  pedestrian  by  fall  of  snow 
and  ice  from  roof;  O'Hara  v.  Nelson,  71  N.  J.  Eq.  161,  63  Atl.  836;  Salisbury  v. 
McGibbon,  61  App.  Div.  524,  69  N.  Y.  Supp.  258,— on  the  test  of  the  permissible 
use  of  property  as  resulting  in  injury  to  adjoining  premises;  McLean  v.  Crosson, 
33  U.  C.  Q.  B.  448,  holding  that  if  a  person  in  the  ordinary  course  of  husbandry 
so  used  his  land  so  as  to  injure  his  neighbor,  he  will  be  liable  in  damages  though 
such  act  is  not  wilful  nor  the  sole  cause  of  the  injury;   McNerney  v.  Forrester. 

2  D.  L.  R.  718,  holding  that  where  walls  of  building  are  dangerous  because  of  fire, 
owners  of  damaged  building  are  under  legal  duty  to  take  all  reasonable  measures 
to  prevent  wall  from  falling  over  to  injury  of  neighbor's  property;  Robinson  v. 
Webb,  11  Bush,  464,  holding  that  owner  is  liable  for  negligent  use  of  his  prop- 
erty by  himself  or  servants  resulting  in  injury  to  others;  Gill  v.  Edouin,  11 
Times  L.  R.  93;  Crompton  v.  Lea,  L.  R.  ]9  Eq.  115,  44  L.  J.  Ch.  N.  S.  69,  31 
L.  T.  N.  S.  469,  23  Week.  Rep.  53, — on  the  liability  for  injury  to  neighboring 
property,  resulting  from  a  reasonable  use  of  one's  own;   Atty.-Gen.  v.  Tomline, 

Notes  on  E.  R.  C— 3. 


1    E.  R.  (J.  23(5]        NOTES  ON  ENGLISH  RULING  CASES.  34 

48  L.  J.  Ch.  N.  S.  503,  L.  R.  12  Cli.  Div.  21 4,  40  L.  T.  N.  S.  775,  on  the  liability 
for  injury  to  adjoining  property  resulting  from  a  natural  user  of  own;  Smith 
v.  Giddy,  73  L.  J.  K.  B.  N.  S.  894,  [1904]  2  K.  B.  448,  91  L.  T.  N.  S.  296,  53 
Week.  Rep.  207,  20  Times  L.  R.  590,  holding  that  a  land  owner  is  liable  to  an 
adjoining  land  owner  for  allowing  his  trees  to  overhang  the  boundary  to  the 
damage  of  the  latter's  crops. 

Cited  in  note  in  18  E.  R.  C.  724,  on  liability  for  injury  to  neighbor  from  im- 
proper use  of  one's  own  land. 

Cited  in  1  Thompson  Neg.  997,  on  liability  for  removing  support  of  land. 

The  decision  of  the  Exchequer  Chamber  was  cited  in  Gorham  v.  Gross,  125 
Mass.  232,  28  Am.  Rep.  224,  holding  that  owner  of  land,  who  makes  contract  with 
mason  by  which  latter  is  to  furnish  material  and  build  party  wall  is  liable  to 
adjoining  owner  for  fall  of  wall  after  acceptance,  resulting  from  its  defective  con- 
dition. 
—  Water  damage. 

Cited  in  Weis  v.  Madison,  75  Ind.  241,  39  Am.  Rep.  135,  holding  that  while  a 
city  was  not  liable  for  damages  resulting  from  the  grading  of  a  street,  they  cannot 
gather  surface  water  in  an  artificial  channel  and  cast  it  upon  adjoining  land; 
Baltimore  Breweries'  Co.  v.  Ranstead,  78  Md.  501,  27  L.R.A.  294,  28  Atl.  273, 
holding  that  the  defendant  was  liable  for  damages  caused  by  a  discharge  of  water 
from  its  brewery  upon  the  street  so  as  to  flood  an  abutting  lot  of  a  lower  level; 
Smith  v.  Faxon,  156  Mass.  589,  31  N.  E.  687,  holding  that  a  landowner  is  liable 
for  flooding  his  neighbor's  land  by  means  of  an  artificial  drain,  through  which 
surface  water  flows;  Boyd  v.  Conklin,  54  Mich.  583,  52  Am.  Rep.  831,  20  N.  \V. 
595,  holding  that  a  rural  landowner  was  liable  for  the  flooding  of  his  neighbor's 
land  caused  by  his  erecting  a  barrier  to  prevent  surface  water  from  flowing  onto 
his  land  in  order  that  he  might  dry  up  a  pond  on  his  land;  Grey  ex  rel.  Simmons 
v.  Paterson,  5S  N.  J.  Eq.  1,  42  Atl.  749,  on  the  right  of  a  city  to  discharge  sewage 
into  a  stream;  Pennsylvania  Coal  Co.  v.  Sanderson,  113  Pa.  126,  57  Am.  Rep. 
445,  6  Atl.  453,  IS  W.  N.  C.  181,  43  Phila.  Leg.  Int.  467,  holding  that  where  a 
mining  company  drained  the  waters  percolating  into  its  mines  into  the  stream 
naturally  draining  that  territory,  thus  making  the  stream  unfit  for  use  by  lower 
riparian  owners,  they  were  without  remedy;  Nichols  v.  Marsland,  7  Legal  Gaz. 
27S,  holding  that  owner  of  artificial  lake  was  not  liable  for  injury  to  adjacent 
land  caused  by  bursting  of  lake's  bank  as  result  of  unprecedented  rain,  where  he 
was  not  guilty  of  negligence;  Williams  v.  Union  Improv.  Co.  G  Kulp,  417,  1  Pa. 
Dist.  R.  288,  holding  that  a  bill  averring  that  their  lands  were  injured  by  the 
draining  of  lands  which  could  as  easily  have  been  drained  without  such  damage, 
into  another  channel,  was  good  as  against  demurrer;  Williams  v.  Raleigh,  21 
Can.  S.  C.  103,  on  the  liability  of  a  town  for  damages  occasioned  by  the  erection 
and  maintenance  of  a  public  drain;  Young  v.  Tucker,  2G  Ont.  App.  Rep.  162,  hold- 
ing that  one  who  in  the  course  of  husbandry  drains  his  land  into  a  pond  which 
is  thereby  overflowed  the  person  is  liable  for  the  flooding  of  his  neighbor's  prop- 
erty; Rowe  v.  Rochester,  29  U.  C.  Q.  B.  590,  holding  that  where  the  defend- 
ant drained  a  highway  by  constructing  a  drain  alongside  thereof  so  that  it  flood- 
ed the  plaintiff's  land,  the  defendant  was  liable  even  in  the  absence  of  negligence; 
N'oble  v.  Toronto,  46  U.  C.  Q.  B.  519,  holding  that  mere  proof  of  Hooding  plain- 
tiff's cellar  from  sewer  did  not  establish  prima  facie  case  of  negligence  against 
city;  Derinzy  v.  Ottawa,  15  Ont.  App.  Rep.  712,  holding  same  where  grading  of 
streets  caused  the  land  to  be  flooded. 

Cited  in  notes  in  27   L.R.A.   294,  on  disposal  of  water  brought  in   unnatural 


35  NOTES  ON  ENGLISH  RULING  CASKS.        [1   E.   Et.  C.  236 

quantities  upon  property;  61  L.R.A.  685,  710,  on  duty  and  liability  of  munici 
pality  witn  respect  to  drainage;  1  Eng\  Rul.  Cas.  758,  on  nonliability  for  diminu- 
tion of  water  on  adjoining  land  by  pumping  from  well  on  one's  own  land;  25 
E.  R.  C.  423,  425,  on  liability  for  injury  to  adjoining  land  due  to  protecting  one's 
own  land  from  Hood. 

Cited  in  4  Dillon  Mun.  Corp.  5th  cd.  3045,  on  rights  and  liabilities  as  respect 
surface-water,  of  the  owners  of  higher  and  lower  city  lots  as  between  tbemselves; 

5  Tbompson  Neg.  360,  on  negligence  of  municipality  in  failing  to  construct  drain- 
to  carry  off  surface  water. 

Distinguished  in  Vanderwiele  v.  Taylor,  65  N.  Y.  341,  holding  that  where  the 
defendant's  land  was  in  its  natural  condition  and  flooded  the  plaintiff's  cellar, 
the  former  was  not  liable  therefor,  nor  was  he  bound  to  drain  his  land  for  the 
latter's  benefit;  Central  Trust  Co.  v.  Wabash,  St.  L.  &  P.  R.  Co.  57  Fed.  441,  hold- 
ing thoct  where  injuries  resulted  from  flooding  lands  because  of  the  insufficiency  of 
a  culvert  to  carry  off  water  because  of  an  almost  unprecedented  rain,  the  defend 
ant  was  not  liable;  McBryan  v.  Canadian  P.  R.  Co.  29  Can.  S.  C.  359   (reversing 

6  B>  C.  136,  which  affirmed  5  B.  C.  187),  holding  that  where  the  defendant  erected 
upon  his  land  a  dam  to  repel  water  cast  thereon  by  a  culvert  in  a  railroad  em- 
bankment, and  it  threw  the  water  back  on  the  embankment  the  defendant  was  not 
liable;  Powley  v.  Mickleborougb,  21  Ont.  L.  Rep.  556,  18  Ann.  Cas.  532,  holding 
tenant  in  upper  flat  liable  to  tenant  underneath  for  damages  from  water  over- 
flowing from  tap  negligently  left  running  in   lavatory. 

The  decision  of  the  Exchequer  Chamber  was  cited  in  Derinzy  v.  Ottawa,  15  Ont. 
App.  Rep.  712,  holding  that  municipal  corporation  is  liable  for  injury  to  neigh- 
boring property  caused  by  collection  and  discharge  of  surface  water  as  result  of 
grading  of  street,  if  by  proper  care  injury  might  have  been  avoided;  Morse  v. 
Marshall,  13  Allen,  288,  on  the  right  to  flood  other  people's  lands  by  means  of  a 
dam;  Clear  Creek  Land  &  Ditch  Co.  v.  Kilkenny,  5  Wyo.  38,  36  Pac.  819,  holding 
that  owner  of  irrigation  ditch  is  liable  for  damages  to  owner  of  land  caused  by 
enlarging  ditch  as  first  constructed. 

The  decision  of  the  Exchequer  Chamber  was  distinguished  in  Phillips  v.  Water- 
house,  69  Iowa,  199,  58  Am.  Rep.  220,  28  N.  W.  539,  holding  that  the  owner  of  a 
city  lot  who  had  improved  it  so  that  the  surface  water  ran  into  the  street  at  the 
established  grade,  was  not  liable  if  another's  lot  was  flooded,  when  the  latter  was 
below  grade.  ^ 

The  decision  of  the  Court  of  Exchequer  was  cited  in  Sanderson  v.  Pennsylvania 
Coal  Co.  35  Phila.  Leg.  Int.  332,  7  Luzerne  Leg.  Reg.  113,  holding  that  mine  owner 
might  be  liable  to  lower  owner  on  stream  for  injury  caused  by  pumping  water 
from  mine  into  stream;  Bryce  v.  Loutit,  21  Ont.  App.  Rep.  100,  holding  that  where 
two  townships  build  a  drain  under  a  road  and  the  defendant  built  a  drain  to  it 
in  such  a  manner  that  it  flooded  the  plaintiff's  land  on  the  other  side  of  the  road, 
the  defendant  was  liable  but  the  towns  were  not;  Gordon  v.  St.  James's  West 
minster,  13  L.  T.  N.  S.  511,  holding  that  where  the  defendants  were  not  negligent 
in  maintaining  a  drain,  they  were  not  liable  to  the  plaintiffs. 

The  decision  of  the  Court  of  Exchequer  was  disapproved  in  Hannaher  v.  St. 
Paul,  M.  &  M.  R.  Co.  5  Dak.  1,  37  N.  W.  717,  holding  that  a  railroad  was  not 
liable   for   the   flooding  of   adjoining  land   by   reason   of   the   construction   of   its 
road  bed,  if  the  same  was  not  negligently  constructed. 
—  Maintenance  of  nuisance. 

Cited  in  note  in  2  B.  R.  C.  903,  on  trees  near  boundary  as  nuisance. 

Cited  in  Joyce  Xuis.  381,  on  disposal  of  sewage  under  statutory  authority  as  a 
nuisance. 


1  E.  R.  C.  236]        NOTES  ON  ENGLISH  RULING  CASES.  36 

Distinguished  in  Griffith  v.  Lewis,  17  Mo.  App.  605,  holding  that  one  who  col- 
lects upon  his  property  a  substance  which  becomes  a  nuisance  is  not  liable  for 
damages  resulting  until  he  has  had  reasonable  time  after  notice,  to  remove  it; 
Esson  v.  Wattier,  25  Or.  7,  34  Pac.  756,  holding  that  the  erection  of  a  dam  could 
not  be  enjoined  unless  it  overflowed  lands  which  would  not  be  but  for  the 
dam. 

The  decision  of  the  Exchequer  Chamber  was  cited  in  Seacord  v.  People,  121  111. 
623,  13  N.  E.  194,  holding  that  business  or  trades  which  produce  merely  annoy- 
ance, and  which  are  not  injurious  to  health  or  life,  are  not  prima  facie  nuisances; 
Reinhart  v.  Sutton,  58  Kan.  726,  51  Pac.  221,  holding  that  abutting  lot  owner 
may  sue  to  abate  as  nuisance  railroad  company's  ditch  which  encroaches  by 
erosion  on  street  to  his  damage. 
—  Impairment  of  subjacent  or  superjacent  mining  rights. 

Cited  in  Lord  v.  Carbon  Iron  Mfg.  Co.  42  N.  J.  Eq.  157,  6  Atl.  812,  holding  that 
if  an  upper  mine  owner  breaks  through  a  barrier  maintained  by  a  lower  mine 
owner  to  protect  his  mine  against  the  flow  of  surface  water,  the  former  is  liable 
for  resulting  damages;  Darley  Main  Colliery  v.  Mitchell,  55  L.  J.  Q.  B.  N-  S. 
529,  L.  R.  11  App.  Cas.  127,  54  L.  T.  N.  S.  882,  51  J.  P.  148,  holding  that  where, 
the  operation  of  the  defendant's  mine  caused  a  subsidence  of  the  surface  and  in- 
jured plaintiff  and  he  recovered  compensation  therefor,  and  later  another  sub- 
sidence occurred  without  further  operation  of  the  mine,  the  plaintiff  could  re- 
cover for  the  second;  Holliday  v.  Wakefield,  17  E.  R.  C.  627,  [1891]  A.  C.  81,  55 
J.  P.  325,  60  L.  J.  Q.  B.  N.  S.  361,  64  L.  T.  N.  S.  1,  40  Week.  Rep.  129,  holding 
mine  owners  not  entitled  to  compensation  for  prospective  prevention  of  working 
of  more  than  50  per  cent  of  coal  within  twenty  yards  of  reservoir. 

Distinguished  in  Greenwell  v.  Low  Beachburn  Colliery  Co.  66  L.  J.  Q.  B.  N.  S. 
643,  [1897]  2  Q.  B.  165,  76  L.  T.  N.  S.  759,  holding  that  where  a  subsidence  was 
caused  dining  the  currency  of  a  mining  lease,  by  reason  of  excavations  made  by 
the  lessee's  predecessor,  the  lessee  was  not  liable;  Smith  v.  Fletcher,  43  L.  J.  Exch. 
N.  S.  70,  L.  R*  9  Exch.  64,  31  L.  T.  N.  S.  190,  holding  that  where  by  reason  of 
improvements  of  the  surface,  water  gathered  there  and  passed  into  the  defend- 
ants' mines,  and  thence  into  the  plaintiff's  which  were  at  a  lower  level,  the  de- 
fendants were  not  liable  unless  negligent. 
Liability  for  acts  authorized  by  law  but  injurious  to  others. 

Cited  in  District  of  Columbia  v.  Baltimore  &  P.  R.  Co.  1  Mackey,  314,  holding 
that  a  railroad  company  was  liable  to  a  city  for  the  amount  the  latter  had  been 
compelled  to  pay  for  injuries  received  because  of  a  defective  condition  of  a  street 
caused  by  the  railroad  company's  embankment;  Short  v.  Baltimore  City  Pass.  R. 
Co.  50  Md.  73,  33  Am.  Rep.  298,  holding  that  a  street  raihvay  company  was  liable 
for  damages  resulting  from  the  heaping  up  of  snow  which  was  removed  from  its 
tracks  so  as  to  block  the  gutter  in  an  unreasonable  manner ;  Beach  v.  Sterling 
Iron  &  Zinc  Co.  54  N.  J.  Eq.  65,  33  Atl.  2S6,  holding  that  a  mining  company  may 
not  pollute  the  waters  of  a  stream  without  compensating  the  riparian  owners  in- 
jured thereby,  even  though  it  is  authorized  by  law;  Chichester  Corp.  v.  Foster 
P906]  1  K.  B.  167,  75  L.  J.  K.  B.  N.  S.  33,  70  J.  P.  73,  54  Week.  Rep.  199,  93 
L.  T.  N.  S.  750,  22  Times  L.  R.  18,  holding  that  where  a  water  main  was  broken 
by  use  .of  an  exceptionally  heavy  traction  engine  and  trucks  on  a  street,  the  per- 
son using  them  was  liable  for  the  repair  of  the  main;  Manchester  Corp.  v.  New 
Moss  Colliery  [1906]  1  Ch.  278,  75  L.  J.  Ch.  N.  S.  145,  70  J.  P.  83,  54  Week.  Rep. 
240,  93  L.  T.  N.  S.  762,  22  Times  L.  R.  132,  on  the  liability  for  loss  arising  from 
things  proper  construction  of  which  are  authorized  by  law. 


37  NOTES  ON   ENGLISB    RULING  (ASKS.        [1  E.  R,  C.  236 

Distinguished  in  Bryant  v.  Bigelow  Carpet  Co.  131  Mass.  491,  holding  that  one 
authorized  by  law  to  erect  a  railroad  or  a  mill-dam,  is  liable  for  injuries  to 
adjacent  property  because  of  a  negligent  construction  thereof;  Fleming  v.  Man- 
chester, 44  L.  T.  N.  S.  517,  45  J.  P.  423,  holding  that  though  the  corporation  had 
been  by  law  authorized  to  build  a  sewer,  if  it  was  negligent  in  maintaining  the 
same,  it  was  liable  for  injuries  caused  thereby;  Snook  v.  Grand  Junction  Water- 
works Co.  2  Times  L.  R.  308;  Green  v.  Chelsea  Waterworks  Co.  10  Times  L.  R. 
259, — holding  that  where  a  company  was  authorized  by  statute  to  maintain  a 
system  of  waterworks,  that  it  was  not  liable  for  the  bursting  of  a  main  unless 
it  was  negligent;  Dixon  v.  Metropolitan  Bd.  of  Works,  50  L.  J.  Q.  B.  N.  S.  772, 
L.  R.  7  Q.  B.  Div.  418,  45  L.  T.  N.  S.  312,  30  Week.  Rep.  83,  46  J.  P.  4,  holding 
same  as  to  sewer  authorized  to  be  built;  Boughton  v.  Midland  G.  W.  R.  Co.  Ir, 
Rep.  7  C.  L.  169,  holding  that  where  water  from  a  canal,  which  was  authorized 
by  law  to  be  built  and  required  to  be  maintained,  was  turned  into  a  sewer  which 
was  obstructed  and  flooded  the  plaintiff's  land,  the  owners  of  the  canal  were  not 
liable. 
—  By  carrying  on  a  lawful  business  injurious  to  others. 

Cited  in  Seacord  v.  People,  121  111.  623,  13  N.  E.  194,  on  the  liability  of  a  land 
owner  for  carrying  on  a  lawful  business  which  is  injurious  to  neighboring  prop- 
erty; Susquehanna  Fertilizer  Co.  v.  Malone,  73  Md.  268,  9  L.R.A.  737,  25  Am. 
St.  Rep.  595,  20  Atl.  900,  holding  that  where  a  lawful  business  is  carried  on  so 
as  to  interfere  with  the  reasonable  and  comfortable  enjoyment  by  another  of  his 
property  or  occasions  injury  to  the  property  itself,  the  proprietor  is  liable  there- 
for; Frost  v.  Berkeley  Phosphate  Co.  42  S.  C.  402,  26  L.R.A.  693,  46  Am.  St.  Rep. 
736,  20  S.  E.  2S0,  holding  that  if  a  land  owner  uses  it  for  the  prosecution  of  a 
business  from  which  injury  to  his  neighbor's  property  will  necessarily  or  prob- 
ably result,  he  is  liable  for  the  resulting  damages,  even  though  he  uses  reasonable 
care;  Wilson  v.  Waddell,  L.  R.  2  App.  Cas.  95,  35  L.  T.  N.  S.  639,  holding  that  the 
right  to  work  mines  is  a  right  of  property  which  when  properly  exercised  begets 
no  responsibility. 

The  decision  of  the  Exchequer  Chamber  was  cited  in  Madison  v.  Ducktown 
Sulphur,  Copper  &  I.  Co.  113  Tenn.  331,  83  S.  W.  658,  holding  that  it  is  not  ques- 
tion of  care  and  skill  in  management  of  industry  but  only  results  that  must  de- 
termine right  to  injunction  against  its  continuance  to  injury  of  another's  prop- 
erty. 

Liability   of   land-owner   for   injuries   resulting   from    dangerous   instru- 
mentalities maintained   on  premises. 

Cited  in  Shipley  v.  Fifty  Associates,  101  Mass.  251,  3  Am.  Rep.  346,  holding 
that  owner  of  building  is  liable  for  injury  resulting  from  sliding  of  mass  of  ice 
and  snow  from  roof  upon  person  in  highway  if  he  suffered  ice  and  snow  to  remain 
on  roof  for  unreasonable  time;  Chicago  &  N.  W.  R,  Co.  v.  Hunerberg,  16  111.  App. 
387,  holding  that  where  through  the  culpable  negligence  of  the  railroad  company, 
a  switch  was  left  open  so  that  its  cars  ran  off  and  onto  the  plaintiff's  lands,  the 
company  was  liable  for  resulting  damages;  Gorham  v.  Gross,  125  Mass.  232,  28 
Am.  Rep.  224,  holding  that  one  who  had  constructed  a  party  wall  between  his 
own  and  his  neighbor's  land  under  agreement  with  the  latter  was  liable  for  in- 
juries to  the  latter  caused  by  such  wall  falling  upon  his  land;  Vincett  v.  Cook, 
4  Hun,  321,  holding  that  failure  on  part  of  owner  of  building  to  keep  it  in  safe 
condition,  and  resulting  damages,  throw  upon  owner  burden  of  showing  that  build- 
ing was  safe  so  far  as  diligent  examination  would  show;  Mathews  v.  St.  Louis  & 
S.  F.  R.  Co.  121  Mo.  298,  25  L.R.A.  161,  24  S.  W.  591,  on  the  common  law  liability 


J    E.  R.  C.  236]        NOTES  03SJ   ENGLISH  RULING  CASES.  38 

of  a  railroad  company  for  fires  started  by  sparks  from  their  engines;  Ains- 
worth  v.  Lakin,  ISO  Mass.  307,  57  L.R.A.  ]32,  91  Am  St.  Rep.  314,  62  N.  E.  746; 
Dillon  v.  Hunt,  11  Mo.  App  246, — holding  that  the  defendant  was  liable  for  in- 
juries sustained  because  of  walls  falling  upon  adjacent  premises,  which  walls  were 
unsafe;  dissenting  opinions  in  McCafferty  v.  Spuyten  Duyvil  &  P.  M.  R.  Co.  61 
N.  Y.  178,  19  Am.  Rep.  207;  Stewart  v.  Gary  Lumber  Co.  146  N.  C.  47,  59  S.  E. 
545;  Winslow  v.  Fuhrman,  25  Ohio  St.  639, — on  the  liability  of  a  landowner  for 
injuries  caused  by  dangerous  instrumentalities  brought  upon  his  premises;  Penas 
v.  Chicago,  M.  &  St.  P.  R.  Co.  112  Minn.  203,  30  L.R.A.(N.S.)  627,  140  Am.  St. 
Rep.  470,  127  N.  W.  926,  to  the  point  that  master  is  held  liable  for  act  of  servant 
where  he  puts  in  servant's  power  ability  to  do  damage  by  means  of  instrumen- 
talities dangerous  intrinsically:  Crewe  v.  Mottershaw.  9  B.  C.  246,  holding  that 
fire  started  in  brush  and  timber  for  the  purpose  of  clearing  the  land  was  a  dan- 
gerous instrumentality  which  was  maintained  at  his  own  risk,  and  was  liable  for 
damages  in  event  of  its  escape,  even  without  negligence;  Grant  v.  Canadian  P. 
R.  Co.  36  N.  B.  528,  holding  same  as  to  railroad  company;  Booth  v.  Moffatt,  11 
Manitoba  L.  Rep.  25,  holding  same  as  to  fire  used  by  farmer  to  clear  land  but 
only  in  case  of  actual  negligence;  Furlong  v.  Carroll,  7  Ont.  App.  Rep.  145,  hold- 
ing that  where  a  fire  was  accidentally  set  upon  land  and  the  owner  thereof  left 
.t  after  confining  it  to  one  place  but  it  afterward  spread,  he  is  liable  for  the  dam- 
ages caused  thereby;  Wealleans  v.  Canada  S.  R.  Co.  21  Ont.  App.  Rep.  297,  hold- 
ing that  a  foreign  railroad  company  operating  within  the  province  without  au- 
thority is  liable  for  fire  started  by  its  engines,  even  in  the  absence  of  negligence; 
Millard  v.  Thurston,  9  Ont.  App.  Rep.  514,  holding  same  as  to  a  steamboat  com- 
pany navigating  inland  waters  without  authority ;  Young  v.  Gravenhurst,  22  Ont. 
L.  Rep.  291,  holding  that  one  dealing  in  electricity  is  bound  to  public  to  exercise 
utmost  care  in  construction,  inspection,  repair  and  operation  of  his  apparatus  and 
appliances;  Kruse  v.  Romanowski,  3  Sask.  L.  R.  274,  holding  that  recovery  could 
not  be  had  at  common  law  for  the  death  of  horse  caused  by  eating  poisoned  grain 
while  trespassing  on  neighbor's  land;  Jones  v.  Festiniog  R.  Co.  37  L.  J.  Q.  B. 
N.  S.  214,  L.  R.  3  Q.  B.  733,  9  Best  &  S.  S35,  18  L.  T.  N.  S.  902,  17  Week.  Rep. 
28,  holding  where  a  railroad  was  not  authorized  by  law  to  use  steam  locomotives, 
it  was  liable  for  fires  set  by  its  engines;  Crowhurst  v.  Amersham  Burial  Board, 
48  L.  J.  Exch.  N.  S.  109,  L.  R.  4  Exch.  Div.  5,  39  L.  T.  N.  S.  355,  27  Week.  Rep. 
95,  holding  that  where  the  plaintiff's  horse  died  from  eating  of  a  poisonous  tree 
which  extended  from  the  defendants'  land  upon  the  plaintiff's,  the  defendants  were 
liable;  Powell  v.  Fall,  L.  R.  5  Q.  B.  Div.  597,  43  L.  T.  N.  S.  562,  49  L.  J.  Q.  B. 
N.  S.  428,  holding  that  where  the  plaintiff's  haystacks  were  burned  by  sparks 
from  the  defendant's  traction  engine  being  driven  along  the  highway  the  defend- 
ant was  liable,  though  he  was  not  negligent  and  had  conformed  to  the  statutes 
applicable  to  steam  engines. 

Cited  in  notes  in  15  L.R.A.  (N.S.)  535,  541,  54S,  on  liability  for  escape  of 
dangerous  substance  stored  on  premises;  34  L.R.A.  559,  on  individual  liability 
for  falling  walls  or  buildings. 

Cited  in  Joyce,  Nuis.  550,  on  liability  of  one  collecting  dangerous  substance  on 
his  property;  1  Thompson,  Neg.  1025,  on  liability  of  landlord  in  case  of  mixed 
possession   as   between   landlord   and   tenant. 

Distinguished  in  Simonton  v.  Loring,  68  Me.  164,  28  Am.  Rep.  29,  holding  that 
where  the  occupants  of  an  upper  tenement  left  open  a  water  faucet  so  that  the 
lower  tenement  was  flooded,  the  former  were  liable  to  the  latter;  Burbank  v. 
Bethel  Steam  Mill  Co.  75  Me.  373,  46  Am.  Rep.  400.  holding  that  the  defendants 


39  NOTES  ON  ENGLISH  RULING  CASES.        [1  E.  R.  C.  236 

were  not  liable  for  the  burning  of  a  mill  by  sparks  from  their  stationary  engine 
though  it  was  erected  and  used  with  out  a  licence,  unless  negligence  was  proved: 
Quinn  v.  Crimmings,  171  Mass.  255,  42  L.R.A.  101,  08  Am.  St.  Rep.  420,  50 
N.  E.  624,  holding  that  one  bound  to  maintain  a  boundary  fence  is  not  liable  foi 
injuries  caused  by  its  fall,  in  the  absence  of  negligence;  Canada  Southern  R.  Co. 
v.  Phelps,  14  Can.  S.  C.  132;  Michigan  C.  R.  v.  Wealleans,  24  Can.  S.  C.  303,— hold 
ing  that  where  a  railroad  company  was  authorized  to  operate  its  road  within  the 
province,  it  was  not  liable  for  fires  started  by  its  engines  unless  it  was  negligent: 
Brewer  v.  Humble,  26  N.  B.  495,  holding  that  where  the  defendant  erected  a  .steam 
mill  upon  their  property  under  agreement  with  the  plaintiff,  they  are  not  liable 
for  a  destruction  of  his  property  by  sparks  from  the  mill,  in  the  absence  of  negli 
gence;  Tennant  v.  Hall,  27  N.  B.  499,  holding  that  where  a  drain  pipe  from  the 
roof  to  a  cistern,  maintained  for  the  benefit  of  both  plaintiff  and  defendant  was 
insufficient  to  carry  off  the  water  during  a  hard  rain,  the  defendant  was  not 
liable;  Liretle  v.  Moncton,  36  N.  B.  475,  holding  that  the  city  having  constructed 
a  sewer  under  statutory  authority  and  made  its  use  compulsory,  it  was  not  liable 
if  the  sewer  was  insufficient  to  accomplish  its  purpose,  if  there  were  no'  negli 
gence  in  adopting  the  plans;  Roe  v.  Lucknovv,  21  Ont.  App.  Rep.  61,  holding  thai 
a  corporation  operating  a  factory  and  legally  authorized  to  do  a  lawful  business 
is  not  liable  for  injuries  caused  by  a  horse  becoming  frightened  by  its  whistle, 
unless  negligently  operated;  dissenting  opinion  in  Gillson  v.  North  Grey  R.  Co. 
35  U.  C.  Q.  B.  475  (affirming  33  U.  C.  Q.  B.  128),  on  the  liability  of  a  land 
owner  for  the  escape  of  dangerous  instrumentalities  from  his  land;  Wilson  v. 
Newberry,  L.  R.  7  Q.  B.  31,  41  L.  J.  Q.  B.  N.  S.  31,  25  L.  T.  N.  S.  695,  20  Week. 
Rep.  Ill,  holding  that  where  a  poisonous  tree  existed  on  a  person's  land,  there 
being  no  active  duty  that  he  shall  keep  the  leaves  there,  he  is  not  liable  if  an- 
other's horse  eats  them;  Ponting  v.  Noakes,  63  L.  J.  Q.  B.  N.'  S.  549  [1S94] 
2  Q.  B.  281,  10  Reports,  265,  70  L.  T.  N.  S.  842,  42  Week.  Rep.  506,  58  J.  P.  55S. 
holding  that  where  the  plaintiff's  horse  died  from  eating  of  a  poisonous  tree  which 
grew  on  the  defendant's  land  near  the  boundary,  there  being  no  fence,  the  de 
fendant  was  not  liable;  Evans  v.  Liverpool  Corp.  [190G]  1  K.  B.  160,  74  L.  J. 
K.  B.  N.  S.  742,  69  J.  P.  263,  holding  that  where  the  plaintiff's  son  was  dis- 
charged from  the  defendant's  hospital  while  still  in  an  infectious  state  after 
being  sick  with  scarlet  fever,  and  he  communicated  the  disease  to  other  children 
of  the  plaintiff,  the  defendant  was  not  liable. 

The  decision  of  the  Exchequer  Chamber  was  cited  in  Robertson  v.  Halifax  Coal 
Co.  20  N.  S.  517,  holding  that  railroad  company  using  highway  without  express 
authority  is  liable  for  death  of  person  caused  by  being  thrown  under  engine  by 
horse  which  he  was  leading  which  became  frightened  by  engine,  where  no  signal 
was  given  of  approach  of  engine;  George  v.  Cypress  Hills  Cemetery,  32  App.  Div. 
281,  52  N.  Y.  Supp.  1097  (dissenting  opinion),  on  liability  of  cemetery  association 
for  injury  to  another  caused  by  coming  in  contact  with  poison  ivy  at  grave  pur 
chased  for  burial  of  husband;  Cahill  v.  Eastman,  18  Minn.  324,  Gil.  292,  10  Am 
Rep.  184,  holding  that  person  who  constructs  tunnel  is  liable  for  injury  to  an 
other's  property  caused  by  water  of  river  bursting  into  tunnel  and  undermining 
such  other  person's  mill;  George  v.  Cypress  Hills  Cemetery,  32  App.  Div.  2S1 . 
52  N.  Y.  Supp.  1097  (dissenting  opinion),  on  the  liability  of  a  land  owner  for 
the  escape  of  dangerous  instrumentalities  maintained  by  him;  Memphis  Consol. 
Gas.  &  Electric  Co.  v.  Letson,  68  C.  C.  A.  453,  135  Fed.  969,  holding  that  where  a 
person  was  killed  while  turning  on  an  electric  light  because  'of  a  short  circuit 
the  company  was  liable,  and  negligence  is  presumed. 


1  E.  R.  C.  236]        NOTES  ON  ENGLISH  RULING  CASES.  40 

The  decision  of  the  Exchequer  Chamber  was  disapproved  in  Gerrish  v.  Whitfield, 
72  N.  H.  222,  55  Atl.  551,  holding  that  an  owner  of  a  steam  mill  was  not  liable, 
in  the  absence  of  negligence,  for  the  destruction  of  a  neighboring  dwelling  by 
sparks  from  the  mill. 

—  Damaging  percolations. 

Cited  in  Ball  v.  Nye,  99  Mass.  5S2,  97  Am.  Dec.  56,  holding  that  one  who 
maintains  a  vault  so  that  filthy  water  filters  from  it  through  into  the  cellar  of  a 
neighbor  is  liable  for  damages  caused  thereby  without  proof  of  negligence; 
Mears  v.  Dole,  135  Mass.  508,  holding  that  where  one  excavates  upon  his  land 
so  as  to  let  in  the  sea,  which  undermines  the  land  of  his  neighbor,  the  former  is 
liable  therefor;  Berger  v.  Minneapolis  Gaslight  Co.  60  Minn.  296,  62  N.  W.  336, 
holding  that  the  defendant  was  liable  without  any  showing  of  negligence,  for  the 
escape  of  crude  petroleum  stored  in  large  quantities  upon  his  premises,  which 
injured  adjoining  property;  Humphreys  v.  Cousins,  46  L.  J.  C.  P.  N.  S.  438,  L.  R. 

2  C.  P.  Div.  239,  36  L.  T.  N.  S.  180,  25  Week.  Rep.  371,  holding  that  the  defend- 
ant was  liable  for  a  defective  sewer  whereby  sewage  escaped  into  the  plaintiff's 
cellar,  though  he  was  not  negligent  and  the  sewer  extended  under  the  plaintiff's 
house.  ' 

Distinguished  in  Goodlander  Mill  Co.  v.  Standard  Oil  Co.  27  L.R.A.  583,  11  C. 
C.  A.  253,  24  U.  S.  App.  7,  63  Fed.  400,  holding  that  where  the  plaintiff's  mill 
was  destroyed  because  of  the  escape  of  oil  from  a  car  shipped  by  the  defendant, 
without  a  valve  to  regulate  the  outflow,  and  the  consignee  attempted  to  unload  it, 
the  defendant  was  not  liable. 

Disapproved  in  Long  v.  Louisville  &  N.  R.  Co.  128  Ky.  26,  13  L.R.A.(N.S.) 
10G3,  107  S.  W.  203,  16  Ann.  Cas.  673,  holding  that  one  who  buries  a  dead  body 
on  his  own  land  is  not  liable  if  the  spring  on  his  neighbor's  land  is  polluted  there- 
by unless  a  reasonably  prudent  person  would  have  foreseen  such  result. 

—  Escape  of  water  artificially  impounded  or  conducted. 

Cited  in  Garnet  Ditch  &  Reservoir  Co.  v.  Sampson,  48  Colo.  285,  110  Pac.  79, 
holding  that  owner  of  reservoir  is  liable  for  injuries  occasioned  to  others  by  leak- 
age or  overflow  therefrom,  or  breaking  of  embankment;  Murphy  v.  Gillum,  73  Mo. 
App.  487,  holding  that  owner  of  reservoir  will  not  be  held  for  resulting  damage 
from  vis  major  or  act  of  God,  or  any  unusual  cause;  Keever  v.  Mankato,  113 
Minn.  55,  33  L.R.A.  (N.S.)  339,  129  N.  W.  158,  Ann.  Cas.  1912A,  216,  1  N.  C.  C.  A. 
187,  to  the  point  that  city  operating  waterworks  was  liable  for  injury  caused  by 
water  escaping  from  embankment;  City  Water  Power  Co.  v.  Fergus  Falls,  113 
Minn.  33,  32  L.R.A. (N.S.)  59,  128  N.  W.  817,  Ann.  Cas.  1912A,  10S,  holding  that 
owner  of  dam  is  liable  for  injury  caused  by  its  breaking  as  result  of  such  extraor- 
dinary floods  as  may  reasonably  be  anticipated;  Wilson  v.  New  Bedford,  108  Mass. 
261,  11  Am.  Rep.  352,  holding  that  one  who  artificially  accumulates  water  upon 
his  land  is  liable  for  injuries  resulting  therefrom  through  the  percolation  of  the 
water  through  upon  his  neighbor's  land;  Scott  v.  Longwell,  139  Mich.  12,  102  N. 
W.  230,  5  Ann.  Cas.  679,  on  the  obligation  of  one  who  collects  waters  in  an  arti- 
ficial reservoir  to  protect  other  property;  Wiltse  v.  Red  Wing,  99  Minn.  255,  109 
N.  W.  114,  holding  that  the  defendant  was  liable  for  damages  resulting  from  the 
bursting  of  a  reservoir  even  in  the  absence  of  proof  of  negligence;  Duerr  v.  Con- 
solidated Gas  Co.  86  App.  Div.  14,  83  N.  Y.  Supp.  714,  holding  that  a  gas  company 
was  liable  for  injuries  caused  by  the  rush  of  water  from  a  Imrsted  tank  which  was 
improperly  constructed ;  Quebec  v.  The  Queen,  24  Can.  S.  C.  420,  on  the  liability 
of  the  government  for  damages  caused  by  a  drain;  Hart  v.  McMullin,  32  N.  S. 
340,  holding  that  a  mill  owner  who  stored  up  water  on  his  land  by  means  of  a 


41  NOTES  ON  ENGLISH  RULING  CASES.        [1  E.  R.  C.  236 

dam  was  responsible  for  its  safe  keeping;  Canadian  P.  R.  Co.  v.  McBryan,  6  B. 
0.  136,  holding  that  injury  to  defendant's  land  caused  by  irrigation  ditch  of  ad- 
joining proprietor  could  not  lawfully  be  averted  by  erection  upon  defendant's  land 
diverting  it  upon  property  of  another;  Cattle  v.  Stockton  Waterworks  Co.  44  L. 
J.  Q.  B.  N.  S.  139,  L.  R.  10  Q.  B.  453,  33  L.  T.  N.  S.  475,  on  the  liability  of  a  water 
company  for  injury  from  water  escaping  from  their  mains;  Canadian  P.  R.  Co. 
v.  McBryan,  5  B.  C.  187,  holding  that  land  owner  is  not  liable  for  injury  from 
backing  water  by  erecting  dam  to  prevent  water  from  irrigation  ditch  constructed 
on  another's  land  from  flowing  through  his  land ;  Hurdman  v.  North  Eastern  R. 
Co.  47  L.  J.  C.  P.  N.  S.  36S,  L.  R.  3  C.  P.  Div.  168,  38  L.  T.  N.  S.  339,  26  Week. 
Rep.  489,  holding  that  where  water  was  cast  upon  neighboring  land  because  of  an 
•artificial  barrier  erected  on  the  defendant's  land  which  gathered  the 
water,  defendant  was  liable  for  the  resulting  injury;  Whalley  v.  Lan- 
cashire &  Y.  R.  Co.  L.  R.  13  Q.  B.  Div.  131,  53  L.  J.  Q,  B.  N-.  S.  285,  50 
L.  T.  N.  S.  472,  32  Week.  Rep.  711,  48  J.  P.  500,  holding  that  where  the  defend- 
ant's railroad  embankment  gathered  the  water  and  the  embankment  was  pierced 
so  as  to  protect  it  from  the  water,  the  defendant  was  liable  for  casting  the  water 
upon  the  plaintiff's  land;  Snow  v.  Whitehead,  53  L.  J.  Ch.  N.  S.  885,  L.  R.  27 
Ch.  Div.  588,  51  L.  T.  N.  S.  253,  33  Week.  Rep.  12S,  holding  where  a  man  allowed 
water  to  gather  in  his  cellar  and  percolate  through  on  to  his  neighbor's  land,  that 
he  was  liable  for  injuries  caused;  Evans  v.  Manchester,  S.  &  L.  R.  Co.  57  L.  J. 
Ch.  N.  S.  153,  L.  R.  30  Ch.  Div.  626,  57  L.  T.  N.  S.  194,  36  Week.  Rep.  328,  hold- 
ing that  where  a  mill  was  injured  by  reason  of  water  soaking  through  from  a 
canal  alongside  of  it,  the  owners  of  the  canal  were  liable  as  they  had  been  negli- 
gent, but  they  must  recover  in  the  manner  provided  by  statute  and  not  by 
action;  Ruddiman  v.  Smith,  60  L.  T.  N.  S.  708,  37  Week.  Rep.  528,  53  J.  P.  518, 
on  the  liability  of  a  land  owner  for  the  escape  of  water  from  his  premises. 

Cited  in  notes  in  1  L.R.A.  (N.S.)  596,  on  negligence  in  storing  or  confining 
water  which  escapes  and  causes  damage;  1  Eng.  Rul.  Cas.  266,  272,  273,  275,  on 
liability  for  injury  by  water,  etc.,  escaping  from  place  where  it  is  stored;  18 
E.  R.  C.  626,  on  liability  of  water  company  for  escape  of  water  from  pipes. 

Cited  in  1  Farnham,  Waters,  478,  on  injury  by  construction  and  use  of  canal; 
3  Farnham,  Waters,  2798,  on  liability  for  injury  by  stored  waters. 

Distinguished  in  Canadian  P.  R.  Co.  v.  Parke,  6  B.  C.  6,  holding  that  where  the 
defendant's  irrigation  ditches  caused  injuries  to  the  plaintiff's  railroad,  the 
ditches  being  authorized  by  law,  the  defendant  was  not  liable  in  the  absence  of 
negligence;  St.  John  Y.  M.  C.  A.  v.  Hutchinson,  18  N.  B.  523,  holding  that  where 
water  gathered  in  an  old  cellar  where  the  building  had  been  burned  away  and 
soaked  through  into  the  adjoining  cellar  which  had  been  sunk  below  its  level,  the 
owners  were  not  liable;  Clarke  v.  Rama  Timber  Transport  Co.  9  Ont.  Rep.  68, 
holding  that  the  defendants  were  not  liable  for  a  break  in  the  river  bank  at  the 
place  where  they  were  maintaining  a  dam  and  canal;  Carstairs  v.  Taylor,  40  L.  J. 
Exch.  N.  S.  129,  L.  R.  6  Excli.  217,  19  Week.  Rep.  723,  holding  that  where  defend 
ant  rented  the  lower  floor  of  a  building  to  the  plaintiff,  and  the  latter's  stock 
was  injured  because  a  rat  ate  a  hole  in  one  of  the  drains  from  the  roof,  the 
defendant  was  not  liable  unless  he  was  negligent;  Ross  v.  Fedden,  41  L.  J.  Q.  B.  N. 
S.  270,  L.  R.  7  Q.  B.  661,  20  L.  T.  N.  S.  966,  holding  that  where  the  water  escaped 
from  a  tap  into  a  water  closet  and  the  waste  pipe  therefrom  had  become  clogged, 
the  owners  thereof  not  being  negligent,  were  not  liable;  Dunn  v.  Birmingham 
Canal  Navigation,  42  L.  J.  Q.  B.  N.  S.  34,  L.  R.  8  Q.  B.  42,  27  L.  T.  N.  S. 
683,  21  Week.  Rep.  266,  holding  that  where  the  defendants'  canal  was  made  to 
leak  by  reason  of  the  plaintiff's  working  his  coal  mine  under  it,  and  the  water 


1  E.  R.  C.  236]        .NOTES  ON  ENGLISH  RULING  CASES.  42 

Hooded  the  ruined,  the  defendants  were  not  liable,  they  not  being  negligent; 
Madras  R.  Co.  v.  Carvetinagarum,  L.  R.   1   Ind.  App.  364,  30  L.   T.  N.  S.   770, 

22  Week.  Rep.  S65,  holding  that  where  the  tanks  used  for  the  storage  of  water  in 
India  have  existed  from  time  immemorial,  the  rule  as  to  the  liability  of  the 
owner  does  not  apply;  Nicholas  v.  Marsland,  L.  R.  2  Exch.  Div.  1,  46  L.  J.  Exch. 
N.  S.  174,  35  L.  T.  N.  S.  725,  25  Week.  Rep.  173,  1  Eng.  Rul.  Cas.  262   (affirming 

23  Week.  Rep.  693,  7  Legal  Gaz.  278),  holding  that  if  one  who  collets  and  stores 
water  on  his  premises,  uses  all  reasonable  means  to  keep  it  there,  and  it  escapes 
through  some  act  of  God  or  vis  major,  the  person  is  not  liable;  Box  v.  Jubb,  48 
L.  J.  Exch.  N.  S.  417,  L.  R.  4  Exch.  Div.  70,  41  L.  T.  N.  S.  97,  27  Week.  Rep. 
415,  holding  that  where  a  large  quantity  of  water  was  discharged  into  the  defend- 
ant's reservoir  by  the  act  of  a  third  party  over  whom  he  had  no  control,  and  in- 
jury was  thereby  occasioned  to  the  plaintiff",  the  defendant  was  not  liable;  Ander- 
son v.  Oppemheimer,  L.  R.  5  Q.  B.  Div.  602,  49  L.  J.  Q.  B.  N.  S.  708,  holding  that 
where  a  cistern  was  maintained  on  the  top  floor  and  water  supplied  therefrom  to 
all  the  tenants,  water  escaping  from  a  branch  service  pipe  and  injuring  the  plain- 
tiff on  the  first  floor,  did  not  make  the  defendant  liable  unless  he  was  negligent; 
Blake  v.  Land  &  House  Property  Corp.  3  Times  L.  R.  667,'  holding  that  where  the 
owner  was  not  negligent,  and  water  escaped  from  a  tap  in  the  house,  through 
no  negligence  of  his,  the  owner  was  not  liable  to  an  adjoining  owner;  Blake  v. 
Woolf,  67  L.  J.  Q.  B.  N.  S.  S13,  [1S98]  2  Q.  B.  426,  79  L.  T.  N.  S.  188,  47  Week. 
Rep.  8,  62  J.  P.  659.  holding  that  where  the  defendant  maintained  a  cistern  on  the 
fourth  floor,  and  the  plaintiff,  who  occupied  the  first  floor  drew  his  supply  of 
water  therefrom,  was  injured  by  tins  water  leaking  through  after  the  defendant 
had  hired  a  man  to  repair  it,  the  defendant  was  not  liable. 

Disapproved  in  Moore  v.  Berlin  Mills  Co.  74  N.  H.  305,  11  L.R.A.(N.S.)  284, 
124  Am.  St.  Rep.  90S,  67  Ati.  578,  13  Ann.  Cas.  217,  holding  that  one  accumulat- 
ing a  large  reservoir  of  water  upon  his  premises  is  not  liable  for  injuries  sus- 
tained by  reason  of  waters  therefrom  percolating  through  upon  adjoining  prop- 
erty unless  such  use  of  the  land  is  unreasonable. 

The  decision  of  the  Exchequer  Chamber  was  cited  in  Gannon  v.  Laclede  Gaslight 
Co.  145  Mo.  502,  43  L.R.A.  505,  47  S.  W.  907  (dissenting  opinion),  on  the  liabil- 
ity of  one  maintaining  a  reservoir  of  water  on  his  premises;  Righter  v.  Jersey 
City  Water  Supply  Co.  73  N.  J.  L.  298,  63  Atl.  6,  on  the  liability  of  a  land  owner 
for  damages  resulting  from  the  reservoir  on  his  land  bursting;  Hart  v.  McMullin. 
32  N.  S.  340,  holding  that  mill  owner  who  causes  water  to  be  stored  up  by  erection 
of  dam,  is  responsible  for  its  safe  keeping;  Weaver  Mercantile  Co.  v.  Thurmond, 
68  W.  Va.  530,  33  L.R.A.  (N.S.)  1061,  70  S.  E.  126,  holding  that  land  owner  who 
brings  water  upon  his  premises  by  artificial  means  and  stores  it  in  tanks,  is 
liable  if  water  escapes  and  injures  adjoining  owner's  property;  Defiance  Water 
Co.  v.  Olinger,  54  Ohio  St.  532,  32  L.R.A.  736,  44  N.  E.  238,  holding  that  the 
water  company  was  liable  for  injuries  sustained  by  a  guest  of  one  of  its  serv- 
ants while  residing  in  a  dwelling  on  the  defendant's  own  land,  where  the  water 
tower  burst;  Sawyer  v.  Ives,  Rap.  Jud.  Quebec  4  B.  R.  374,  holding  owner  liable 
for  damages  from  breaking,  during  extraordinary  rainfall,  of  wing  of  dam  due 
to  water  having  been  held  back  by  too  high  flush  boards  on  center  of  dam. 

The  decision    of  the  Exchequer  Chamber  was  disapproved  in  Murphy  v.  Gilltim, 
73  Mo.  App.  487,  holding  that  on°  maintaining  a  reservoir  of  water  on  his  land- 
is  not  an  insurer  that  it  will  cause  no  injury  to  others. 
—  Other  fugitive  or  vagrant  tilings. 

Cited  in  Frost  v.  Berkeley  Phosphate  Co.  42  S.  C.  402,  26  L.R.A.  693,  46  Am. 


43  .NOTES  ON   ENGLISH  RULING  CASKS.        LI   E.  R.  C.  230 

St.  Rep.  736,  20  S.  E.  280,  holding  that  owner  of  land  is  liable  for  damage  to 
neighbor's  property  caused  by  phosphate  factory  thereon  generating  deleterious 
gases  and  vapors;  Dever  v.  South  Bay  Boom  Co.  14  N.  B.  100,  holding  that  where 
a  company  were  authorized  by  law  to  maintain  a  boom  within  certain  limits,  they 
were  not  liable  for  logs  breaking  away  and  floating  ashore  within  the  boom  limits; 
Atkinson  v.  Goodrich  Transp.  Co.  00  Wis.  141,  50  Am.  Rep.  352,  18  N.  \V.  704. 
holding  that  the  defendant  steamboat  company  was  liable  for  the  destruction  of 
the  plaintiff's  buildings  even  though  the  lire  was  communicated  first  from  its 
engines  to  a  pile  of  shavings  belonging  to  a  third  party;  Chandler  Electric  Co.  v. 
Fuller.  21  Can.  S.  C.  337  (affirming  23  N.  S.  263),  holding  that  the  defend- 
ants were  liable  for  damages  to  property  of  the  plaintiffs  stored  on  adjoining 
premises  by  steam  discharged  from  their  condenser;  Jaffrey  v.  Toronto,  G.-  &  B. 
R.  Co.  24  U.  C.  C.  P.  271,  holding  that  where  a  railroad  company  recently  built 
through  a  forest  and  allowed  wood  to  accumulate  which  became  dry  and  was  set  on 
lire  by  their  engine,  and  the  fire  spread,  the  company  was  not  liable  in  the 
absence  of  negligence;  Canadian  P.  R.  Co.  v.  Roy,  Rap.  Jud.  Quebec  9  B.  R.  551 
(reversed  in  Rap.  Jud.  Quebec  12  B.  R.  543),  holding  railroad  liable  for  fire  from 
sparks  from  engine  though  no  negligence  is  proved  and  best  spark  arresters  were 
used;  Cumberland  Teleph.  &  Teleg.  Co.  v.  United  Electric  R.  Co.  12  L.R.A.  544, 
42  Fed.  273;  Bell  Teleph.  Co.  v.  Montreal  Street  R.  Co.  Rap.  Jud.  Quebec  10  C. 
S.  162, — holding  that  where  the  operation  of  a  telephone  system  was  interfered 
with,  by  the  installation  of  an  electric  street  railway,  the  former  having  no  vested 
interest  in  the  street,  the  latter  was  not  liable;  Young  v.  Gravenhurst,  24  Ont.  L. 
Rep.  470.  Ann.  Cas.  1912B,  812,  holding  that  municipal  corporation  is  bound  to 
exercise  utmost  degre  of  care  and  skill  in  supplying  residents  with  electricity: 
Cooksley  v.  New  Westminster,  14  B.  C.  330,  on  liability  of  person  who  brings  on 
his  land  anything  which  if  it  should  escape,  may  cause  damage  to  his  neighbor; 
Winnipeg  Oil  Co.  v.  Canadian  Northern  R.  Co.  21  Manitoba  L.  Rep.  274,  holding 
that  railroad  company  was  liable  for  damage  by  fire  to  plaintiff's  premises  ad- 
joining track  where  fire  was  discovered  five  minutes  after  passage  of  train, 
although  no  negligence  in  operating  train  was  shown;  Martineau  v.  Dumphy, 
Rap.  Jud.  Quebec  1!)  B.  R.  352,  holding  that  persons  in  possession  of  premises 
near  sidewalk  are  liable  to  person  although  trespasser  who  is  injured  by  electric 
current  not  properly  guarded;  Ottawa  Electric  Co.  v.  Cunningham,  Rap.  Jud. 
Quebec  20  B.  R.  481,  holding  that  electric  company  is  presumed  to  be  negligent 
in  making  connections  for  supplying  home  with  electricity  in  such  way  as  to 
allow  high  voltage  to  reach  inside  wiring,  causing  death  by  contact  with  such 
inside  wires;  Fuller  v.  Pearson,  23  N.  S.  263,  holding  that  recovery  might  be  had 
for  damage  caused  by  rust  to  property  twenty  feet  distant  from  place  where  steam 
or  vapor  escaped  from  defendant's  engine,  upon  his  own  land;  Batcheller  v.  Tun 
bridge  Wells  Gas  Co.  84  L.  T.  N.  S.  765,  65  J.  P.  680,  17  Times  L.  R.  765,  hold- 
ing that  the  defendants  were  bound  to  keep  their  gas  mains  gas  tight  so  as  to  pre- 
vent fts  escape;  Smith  v.  London  &  S.  W.  R.  Co.  18  E.  R.  C.  726,  L.  R.  6  C.  P. 
14.  40  L.  J.  C.  P.  N.  S.  21,  23  L.  T.  N.  S.  678.  10  Week.  Rep.  230,  holding  railroad 
liable  for  burning  of  cottage  from  fire  carried  by  high  wind  across  field  from  fire 
in  heaps  of  trimmings  on  right  of  way. 

Cited  in  notes  in  52  L.R.A.  295,  on  liability  of  owner  or  occupant  of  land  for 
spread  of  weeds  or  noxious  vegetation;  30  L.R.A.  (N.S.)  195,  on  liability  for  set- 
ting fire  spreading  to  other's  property;  2  B.  R.  C.  133,  on  liability  of  user  of 
electricity  for  injury  to  business  or  property  of  another  from  induction  or  use  of 
earth  as  return  electric  circuit. 


1  E.  R.  C.  236]        NOTES  ON  ENGLISH  RULING  CASES.  44 

Cited  in  Joyce,  Nuis.  46,  on  liability  for  accumulating  on  one's  own  land  some- 
thing liable  to  escape;  1  Thompson,  Neg.  637,  638,  640,  643-645,  649,  653,  on  lia- 
bility for  artificially  collecting  on  one's  own  land  substances  'having  tendency  to 
escape  on  land  of  another;  1  Thompson,  Neg.  732,  733,  735,  on  liability  for  injury 
by  electricity;  Thornton,  Oil  &  Gas,  685,  on.  duty  of  gas  company  to  keep  its  gas 
constantly  under  control. 

Distinguished  in  Jennings  v.  Davis,  109  C.  C.  A.  451,  187  Fed.  703,  holding 
that  owner  of  pipe  line  used  for  transportation  of  petroleum  must  use  such  care 
to  prevent  leakage  and  injury  to  another's  property  as  would  be  exercised  by 
man  of  ordinary  prudence  under  same  circumstances  if  whole  risk  was  his  own; 
Smith  v.  Boston  Gaslight  Co.  129  Mass.  318,  holding  that  a  gas  company  was  not 
liable  for  the  death  of  a  person  caused  by  inhaling  gas  which  had  escaped  from  a 
defective  gas  pipe  in  the  absence  of  negligence,  but  the  unexplained  escape  of  the 
gas  was  prima  facie  evidence  of  negligence;  Gould  v.  Winona  Gas  Co.  100  Minn. 
258,  10  L.R.A.(N.S.)  889,  111  N.  W.  254,  holding  that  a  gas  company  was  not 
liable  in  the  absence  of  negligence  for  the  injuries  to  trees  caused  by  the  escape 
of  gas  from  its  mains  on  streets;  Schmeer  v.  Gaslight  Co.  147  N.  Y.  529,  30  L.R.A. 
653,  42  N.  E.  202,  holding  that  a  gas  company  is  not  liable  for  an  explosion  of 
gas  let  into  a  building  unless  it  is  negligent;  Neal  v.  Atlantic  Ref.  Co.  4  Pa. 
Dist.  R.  49,  16  Pa.  Co.  Ct.  241,  holding  that  the  defendant  was  not  liable  for  the 
destruction  of  the  plaintiff's  tug  boat,  by  a  fire  set  by  one  over  whom  it  had  no 
control,  though  some  oil  had  escaped  from  its  refinery  and  had  commingled  with 
that  set  on  fire;  Hinman  v.  Winnipeg  Electric  Street  R.  Co.  16  Manitoba  L.  Rep. 
16,  holding  that  where  the  use  of  electricity  was  authorized  for  street  railway 
purposes  the  company  was  not  bound  to  prevent  telephone  wires  from  coming 
in  contact  with  the  trolley  wires  except  where  it  is  specially  dangerous;  Eastern 
&  S.  A.  Teleg.  Co.  v.  Cape  Town  Tramways  Co.  [1902]  A.  C.  3S1,  2  B.  R.  C.  114,  71 
L.  J.  P.  C.  N.  S.  122,  86  L.  T.  N.  S.  457,  50  Week.  Rep.  657,  18  Times  L.  R.  523, 
holding  that  an  action  did  not  lie  against  an  electric  railway  company  for  inter- 
ference with  the  operation  of  a  submarine  cable,  because  of  the  escape  of  electric 
currents,  where  the  interference  could  have  been  prevented  in  the  construction  of 
the  cable;  National  Teleph.  Co.  v.  Baker,  62  L.  J.  Ch.  N.  S.  699,  [1893]  2  Ch. 
186,  3  Reports,  318,  68  L.  T.  N.  S.  2S3,  57  J.  P.  373,  holding  same  as  to  a  tele- 
phone company  injured  by  operation  of  street  railway,  which  was  authorized  by 
law. 

Limited  in  Langabaugh  v.  Anderson,  68  Ohio  St.  131,  62  L.R.A.  948,  67  N.  E. 
286,  holding  that  where  oil  escaped  from  a  tank  and  ran  down  across  plaintiff's 
land  and  was  intercepted  by  a  fire  which  followed  it  back  and  destroyed  the  plain- 
tiff's buildings  the  defendant  was  not  liable. 

Disapproved  in  Mangan  v.  Louisville  Electric  Light  Co.  (Phelan  v.  Louisville 
Electric  Light  Co.)  122  Ky.  476,  6  L.R.A. (N.S.)  459,  81  S.  W.  703,  holding  that  a 
manufacturer  of  electricity  is  liable  for  injuries  caused  by  its  escape  only  in  case 
of  negligence  and  he  is  not  an  insurer;  Triple-State  Natural  Gas  &  Oil  Co.  t. 
Wellman,  114  Ky.  79,  70  S.  W.  49,  1  Ann.  Cas.  64,  holding  same  as  to  natural 
gas. 

The  decision  of  the  Exchequer  Chamber  was  cited  in  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Oakes,  94  Tex.  155,  52  L.R.A.  293,  86  Am.  St.  Rep.  835,  58  S.  W.  999,  holding 
that  mere  spreading  to  adjoining  farms  of  Bermuda  grass  planted  by  railroad 
company  to  preserve  embankments  does  not  render  company  liable  for  damages 
caused  tbereby ;  Brennan  Constr.  Co.  v.  Cumberland,  29  App.  D.  C.  554,  15  L.R.A. 
(N.S.)    535,    10    Ann.    Cas.    865,    holding    that    person    who    permits    escape    of 


45  NOTES  ON  ENGLISH  RULING   CASKS.        [1    K.   R.  C.  236 

petroleum  residuum  into  navigable  river  within  limits  of  city  is  liable  for  in- 
jury to  boat  at  boat  house  caused  by  such  escaping  substance;  Mathews  v.  St. 
Louis  &  S.  F.  R.  Co.  121  Mo.  298,  25  L.R.A.  161,  24  S.  W.  591,  holding  that  stat 
ute  making  railroad  company  absolutely  liable  for  damage  to  property  from  fires 
communicated  by  its  locomotives  is  not  unconstitutional  as  impairing,  by  sub 
jecting  it  to  increased  burden,  rights  given  it  to  propel  its  cars  by  steam;  Lawson 
v.  Price,  45  Md.  123,  holding  that  in  action  for  obstruction  of  race  by  throwing 
logs,  stumps,  etc.  therein,  whereby  damage  accrued  to  plaintiff,  negligence,  is 
not  gravamen  of  action. 

The  decision  of  the  Court  of  Exchequer  was  cited  in  Gillson  v.  North  Grey  E. 
Co.  33  U.  C.  Q.  B.  128,  holding  that  person  setting  fire  on  his  own  land  in  order 
to  clear  it  is  not  insurer  that  no  injury  shall  happen  to  neighbor's  land,  but  is 
responsible  only  for  negligence;  Berger  v.  Minneapolis  Gaslight  Co.  GO  Minn.  290, 
62  N.  W.  336,  holding  that  person  who  stores  quantity  of  petroleum  upon  his  land 
is  liable  to  person  whose  land  is  injured  by  its  escape;  George  v.  Cypress  Hills 
Cemetery,  32  App.  Div.  281,  52  N.  Y.  Supp.  1097,  1  Am.  Neg.  Rep.  646  (dissent- 
ing opinion),  on  liability  of  owner  of  premises  for  damages  caused  by  escape  from 
his  premises  of  anything  likely  to  do  injury;  Sanderson  v.  Pennsylvania  Coal  Co. 
86  Pa.  401,  27  Am.  Rep.  711,  11  Mor.  Min.  Rep.  60,  6  W.  N.  C.  97,  35  Phila.  Leg. 
Int.  332,  7  Luzerne  Leg.  Reg.  Ill,  holding  tnat  in  action  for  pollution  of  stream 
so  as  to  render  it  unfit  for  domestic  purposes,  caused  by  opening  and  operation  of 
coal  mine  by  upper  owner,  question  of  defendant's  liability  should  have  been 
submitted  to  jury. 

The  decision  of  the  Court  of  Exchequer  was  distinguished  in  Pennsylvania  Coal 
Co.  v.  Sanderson,  113  Pa.  126,  57  Am.  Rep.  445,  6  Atl.  453,  18  W.  N.  C.  181,  43 
Phila.  Leg.  Int.  467,  holding  that  lower  owner  cannot  recover  damages  for  pollu- 
tion of  stream  by  opening  of  coal  mine  by  upper  owner  and  destroying  usefulness 
of  water  of  stream  for  domestic  purposes. 
—  To  persons  while  lawfully  traveling  on  public  highway. 

Cited  in  Davis  v.  Rich,  180  Mass.  235,  02  N.  E.  375,  holding  that  one  main- 
taining a  spout  having  a  visible  defect  so  that  it  discharges  water  upon  the  side- 
walk instead  of  into  the  sewer  is  absolutely  liable  to  a  person  for  injuries  result- 
ing from  falling  on  ice  formed  by  such  spout;  Shipley  v.  Fifty  Associates,  106 
Mass.  194,  8  Am.  Rep.  3.18  (affirming  101  Mass.  251,  3  Am.  Rep.  346)  ;  Hannem 
v.  Pence,  40  Minn.  127,  12  Am.  St.  Rep.  717,  41  N.  W.  657,— holding  that  the 
owner  of  a  building  abutting  on  a  street  was  liable  to  a  person  injured  by  snow 
falling  from  the  roof  where  it  had  been  accumulated  by  the  formation  of  the 
roof,  without  other  proof  of  negligence;  Griffiths  v.  Portland,  23  N.  B.  559,  holding 
that  the  city  was  liable  for  injuries  caused  by  a  defect  in  a  sidewalk;  Dugal  v. 
People's  Bank,  34  N.  B.  581,  on  the  liability  of  a  land  owner  for  injuries  caused 
by  the  accumulation  of  ice  and  snow  upon  a  building,  which  ice  and  snow  after 
ward  falls. 

Cited  in  1  Washburn,  Real  Prop.  6th  ed.  444,  on  liability  of  tenant  to  traveler 
on  highway. 

Distinguished  in  Southwestern  Teleg.  &  Teleph.  Co.  v.  Beatty,  03  Ark.  65,  37 
S.  W.  570,  holding  that  a  telephone  company  was  not  liable  to  a  pedestrian  in- 
jured by  a  brick  falling  from  a  pier  used  to  support  its  wires,  unless  the  com 
pany  was  negligent;  Walsh  v.  Hayes,  72  Conn.  397,  44  Atl.  725,  holding  that  in 
the  absence  of  negligence  the  defendant  was  not  liable  if  a  piece  of  ice  was  jolted 
out  of  an  ice  cart  while  crossing  over  a  rough  stone  crossing;  Waller  v.  Ross,  100 
Minn.  7,  12  L.R.A.  (N.S.)   721,  117  Am.  St.  Rep.  661,  110  N.  W.  252,  10  Ann.  Caa. 


I  E.  K.  C.  236]        NOTES  ON  ENGLISH  RULING  CASES.  40 

715,  holding  that  one  maintaining  an  awning  over  a  sidewalk  is  not  liable  for  in- 
juries to  persons,  resulting  from  the  falling  of  the  awning,  unless  it  was  negli- 
gently maintained;  MeNulty  v.  Ludwig  &  Co.  125  App.  Div.  291,  109  N.  Y.  Supp. 
703,  holding  that  in  the  absence  of  negligence,  an  owner  of  a  building  is  not 
liable  for  injuries  received  by  reason  of  a  swinging  sign  falling  from  the  building, 
which  is  not  a  nuisance;  Strawbridge  v.  Philadelphia,  13  Phila.  173,  30  Phila. 
Leg.  Int.  270,  7  W.  N.  C.  537,  2  Pennyp.  419,  holding  that  a  city,  in  the  absence  of 
negligence  is  not  liable  for  the  bursting  of  a  gas  main  owned  by  it;  Skelton  v. 
Thompson,  3  Ont.  Rep.  11,  holding  that  where  the  plaintiff  was  injured  by  fall- 
ing on  an  icy  sidewalk  caused  by  the  discharge  of  water  from  defendant's  roof 
through  a  drain,  the  latter  were  not  liable  without  knowledge  of  the  dangerous 
condition;  Roberts  v.  Mitchell,  21  Ont.  App.  Rep.  433,  holding  that  the  owner  of 
a  building  was  liable  for  injuries  to  one  passing  by  on  the  sidewalk,  caused  by  a 
cornice  falling,  which  resulted  from  the  ordinary  decay  without  notice  of  the 
dangerous  condition. 

Disapproved  in  Garland  v.  Towne,  55  N.  H.  55,  20  Am.  Rep.  104,  holding  that 
the  maintenance  of  eaves  or  gutters  projecting  over  a  street  being  an  indictable 
offense,  negligence  is  not  necessary  to  make  the  owner  of  the  building  liable  to  a 
person  injured  as  a  result  of  such  nuisance. 

The  decision  of  the  Exchequer  Chamber  was  cited  in  Scanlon  v.   Wedger,   150 
Mass.  4(32,  10  L.R.A.  395,  31  N.  E.  642    (dissenting  opinion),  on  the  liability  for 
injuries  to  a  spectator,  on  a  public  street,  by  a  display  of  fireworks. 
—  Blasting  operations  or  use  of  explosives. 

Cited  in  Georgetown,  B.  &  L.  R.  Co.  v.  Eagles,  9  Colo.  544,  13  Pac.  696,  hold- 
ing that  the  railroad  company  was  liable  for  injuries  occasioned  by  blasting  on 
its  right  of  way  even  if  it  exercised  due  care;  Colton  v.  Onderdonk,  69  Cal.  155, 
58  Am.  Rep.  556,  10  Pac.  395,  holding  same  as  to  blasting  on  city  lot  by  owner; 
Longtin  v.  Persell,  30  Mont.  306,  65  L.R.A.  655,  104  Am.  St.  Rep.  723,  76  Pac. 
699,  2  Ann.  Cas.  198,  holding  that  a  person  carrying  on  blasting  operations  with- 
in a  platted  district  of  a  city  is  liable  for  injuries  to  property  owing  to  con- 
cussions of  the  air  from  the  blasting,  irrespective  of  care  exercised ;  Kleebauer  v. 
Western  Fuse  &  Explosives  Co.  6  Cal.  Unrep.  933,  60  L.R.A.  377,  69  Pac.  246, 
holding  that  the  maintenance  of  a  fuse  factory  in  which  was  stored  a  large 
quantity  of  powder  was  a  nuisance  per  se  so  that  the  defendant  was  liable  where 
it  was  maliciously  exploded  by  a  servant  (reversed  on  rehearing)  ;  Bradford 
Glycerine  Co.  v.  St.  Marys  Woolen  Mfg.  Co.  60  Ohio  St.  560,  45  L.R.A.  658,  71 
Am.  St.  Rep.  740,  54  N.  E.  528,  holding  that  one  storing  nitroglycerine  upon  his 
premises  is  liable  for  any  injuries  caused  by  an  explosion  thereof,  even  though 
such  storage  was  not  prohibited  by  law,  nor  the  owner  negligent;  Parrott  v. 
Barney,  2  Abb.  (U.  S.)  197,  Fed.  Cas.  No.  10,773,  holding  that  a  common  carrier 
was  not  liable  for  injuries  to  surrounding  property,  caused  by  an  explosion  of 
nitroglycerine  delivered  to  it  for  shipment,  where  it  did  not  know  the  contents 
of  the  package;  Burke  v.  Anderson.  16  C.  C.  A.  442,  34  U.  S.  App.  132,  69  Fed. 
814,  holding  that  the  master  was  liable  to  a  servant  for  injuries  received  from 
a  stick  of  dynamite  remaining  after  a  blast,  unless  the  latter  was  warned  of  his 
danger  or  knew  it. 

Cited  in  note  in  16  L.R.A. (N.S.)   692,  on  storage  of  explosives  as  nuisances. 

Cited  in  1  Thompson  Neg.  699,  on  liability  of  railroad  conrpany  for  damages 
caused  by  explosion  of  steam  boilers:  1  Thompson  Neg.  703,  on  liability  for  dam- 
ages caused  by  blasting  rock;  2  Thomas  Neg.  2d  ed.  2062,  on  liability  for  injury 
to  neighbor  from  explosion  on  one's  premises;  2  Thomas  Neg.  2d  ed.  2073,  on 
liability   for   injury   by   blasting  under   operation   of   contractor. 


47  NOTES  OX  ENGLISH    RULING  CASES.       |l    E.   EL  C.  236 

Distinguished  in  Barnes  v.  Zettlcmoyer,  25  Tex.  Civ.  App.  U.S.  62  S.  W.  111, 
holding  that  the  keeping  of  a  quantity  of  dynamite  by  hardware  merchants,  for 
sale  is  not  a  nuisance  so  as  to  make  them  liable  if  it  explodes,  unless  they  arc- 
negligent;  Klepsch  v.  Donald,  4  Wash.  436,  31  Am.  St.  Rep.  !»36,  30  Pac.  991. 
holding  that  there  is  no  presumption  of  negligence,  where  a  person  was  injured 
by  a  blast  while  standing  at  a  great  distance  from  where  it  was  discharged. 

Disapproved  in  The  Ingrid,  195  Fed.  .578,  holding  that  carrier  of  explosives 
cannot  be  held  liable  as  insurer  against  injuries  which  may  result  to  others  from 
accidental  explosion,  but  is  only  liable  on  ground  of  negligence;  Bishop  v.  Brown. 
14  Colo.  App.  535,  61  Pac.  50,  holding  that  in  the  absence  of  negligence  the  owner 
of  a  steam  boiler  is  not  liable  if  it  explodes,  injuring  others. 

The  decision  of  the  Exchequer  Chamber  was  cited  in  Burke  v.  Anderson,  16 
C.  C.  A.  442,  34  U.  S.  App.  132,  69  Fed.  814,  holding  that  contractor  is  liable  to 
servant  caused  by  explosion  of  dynamite  struck  with  pick  where  seivant  was  set 
to  work  digging  with  pick  at  spot  where  blasting  had  been  done  day  before,  with 
out  warning  of  possible  danger;  Scanlon  v.  Wedger,  156  Mass.  462,  16  L.R.A.  395. 
31  N.  E.  642  (dissenting  opinion),  on  liability  for  injury  to  person  on  street 
caused  by  explosion  of  bomb  during  display  of  fireworks  under  license  from  city: 
McGhee  v.  Norfolk  &  S.  R.  Co.  147  N.  C.  142,  24  L.R.A.(N.S-)  119,  60  S.  E.  912 
(dissenting  opinion),  on  liability  of  railroad  company  for  injury  caused  by 
explosion  of  dynamite  stored  near  highway;  Henderson  v.  Sullivan,  16  L.R.A. 
(N.S.)  691,  S6  C.  C.  A.  236,  159  Fed.  46,  14  Ann.  Cas.  590,  holding  that  storage 
on  island  in  Detroit  river  of  tons  of  dynamite  which  was  liable  to  and  did  ex- 
plode, constituted  nuisance. 

The  decision  of  the  Exchequer  Chamber  was  distinguished  in  Cleveland  Termi- 
nal &  Valley  R.  Co.  v.  Marsh,  63  Ohio  St.  236,  52  L.R.A.  1.42,  58  N.  E.  821,  hold 
ing  that  a  railway  company  was  not  liable  for  injuries  caused  by  the  explosion 
of  a  signal  torpedo  placed  along  its  track,  sustained  by  a  boy  employed  by  the 
agent  to  assist  in  caring  for  switch  lights. 

The  decision  of  the  Exchequer  Chamber  was  disapproved  in  Marshall  v.  Wei 
wood,  3S  N.  J.  L.  339,  20  Am.  Rep.  394;  Losee  v.  Buchanan,  51  N.  Y.  476,  10  Am. 
Rep.  623:  Veith  v.  Hope  Salt  &  Coal  Co.  51  W.  Va.  96,  57  L.R.A.  410,  41  S.  E. 
187, — holding  that  one  maintaining  a  steamboiler  upon  his  premises  in  the 
operation  of  a  lawful  business  is  not  liable  for  injuries  caused  by  its  explosion 
in  the  absence  of  negligence. 
—  Escape  of  animals. 

Cited  in  Baker  v.  Snell  [1908]  2  K.  B.  825,  2  B.  R.  C.  1,  77  L.  J.  K.  B.  N.  S. 
1090,  24  Times  L.  R.  811,  52  Sol.  Jo.  681  (dissenting  opinion),  on  liability  of 
owner  of  dog  incited  by  servant  to  attack  stranger;  Childs  v.  Ilea  in,  43  L.  J. 
Exch.  X.  S.  100,  L.  R.  9  Exch.  176,  22  Week.  Rep.  864,  on  the  liability  lor  injuries 
caused  by  animals  escaping  from  land. 

Cited  in  note  in  37  L.R.A.  (N.S.)  720,  on  liability,  in  absence  of  negligence,  for 
damage  by  runaway  horse. 

Distinguished  in  Caughlin  v.  Campbell-Sell  Baking  Co.  39  Colo.  148.  8  L.R.A. 
(N.S.)  1001,  121  Am.  St.  Rep.  158,  89  Pac.  53,  holding  that  one  leaving  a  team 
standing  on  a  highway,  restrained  by  a  weight  is  not  liable  lor  injuries  caused 
by  their  running  away  unless  he  is  negligent. 

Disapproved  in  Brown  v.  Collins,  53  N.  H.  442,  16  Am.  Rep.  372,  holding  that 
a  person  whose  horses  become  frightened  by  a  locomotive  is  not  liable  for  dam- 
ages caused  by  their  running  upon  adjoining  land  where  it  is  not  his  fault. 

The  decision  of  the  Exchequer  Chamber  was  cited  in  Ward  v.  1'aducah  &  M.  1!. 
Go.  4  Fed.  S62,  holding  that  if  crops  be  damaged  by  animals  of  owner,  adjoining 


1   E.  R.  C.  23G]        NOTES  ON  ENGLISH  RULING  CASES.  48 

proprietor  can  only  be  liable  when  by  some  prescription,  contract,  or  statutory 
duty,  such  liability  is  imposed  upon  him ;  Patterson  v.  Fanning,  2  Ont.  L.  Rep. 
4G2,  holding  that  the  owner  of  a  horse,  which  was  unlawfully  upon  a  highway 
through  the  owner's  negligence  was  liable  for  injuries  caused  by  it. 

The  decision  of  the  Exchequer  Chamber  was  distinguished  in  Zumstein  v. 
Shrumm,  22  Ont.  App.  Rep.  263,  holding  that  the  owner  of  a  turkey  gobbler  was 
not  liable  if  it  escaped  from  his  premises  and  frightened  a  horse  being  driven 
along  a  highway,   injuring  the   plaintiff. 

The  decision  of  the  Court  of  Exchequer  was  cited  in  Brown  v.  Collins,  53  N. 
H.  442,  16  Am.  Rep.  372,  holding  that  person  whose  horses  run  away  because 
frightened  by  locomotive  and  break  post  upon  another's  land,  is  not  liable  for 
damage,  if  it  was  not  caused  by  any  fault  on  his  part. 

—  Injuries  by  wild  or  vicious  animals. 

Cited  in  Montgomery  v.  Koester,  35  La.  Ann.  1091,  48  Am.  Rep.  253,  holding 
that  one  who  keeps  a  dangerous  animal  upon  his  premises  is  bound,  knowing 
him  to  be  such,  to  keep  him  safe  from  hurting  innocent  persons,  and  the  owner  is 
liable  if  for  want  of  reasonable  care  he  injures  another;  Shaw  v.  McCreary,  19 
Ont.  Rep.  39,  holding  that  the  wife  was  liable  for  injuries  caused  by  the  escape 
of  a  bear  confined  by  her  husband  upon  her  separate  property ;  Filburn  v. 
People's  Palace  Co.  59  L.  J.  Q.  B.  N.  S.  471,  L.  R.  25  Q.  B.  Div.  258,  38  Week. 
Rep.  706,  55  J.  P.  181,  holding  that  defendants  were  liable  for  injuries  caused 
by  escape  of  an  elephant,  which  was  kept  by  them  on  exhibition;  Brady  v. 
Warren  [1900]  2  Ir.  Q.  B.  632,  holding  that  where  deer  were  kept  in  a  game 
preserve,  the  owner  was  liable  for  trespass  by  them  and  injury  to  neighbor's 
crops,  but  not  so,  as  to  rabbits  which  were  upon  the  preserve,  as  he  did  nothing 
to  care  for  them. 

The  decision  of  the  Exchequer  Chamber  was  cited  in  Chase  v.  McDonald,  25 
U.  C.  C.  P.  129,  holding  that  person  injured  by  horse  at  large  on  highway  cannot 
recover  under  declaration  failing  to  allege  that  owner  had  knowledge  of  vicious 
nature  of  horse;  Behan  v.  Vredenburg,  33  La.  Ann.  627,  1  Am.  Neg.  Cas.  347, 
holding  that  keeping  of  ferocious  animals  is  unlawful  act,  and  injury  done  by 
them  when  they  get  loose,  gives  rise  to  action  for  damages;  Peterson  v.  Conlan, 
18  N.  D.  205,  119  N.  W.  367,  holding  that  owner  of  alleged  vicious  animal  cannot 
be  held  liable  for  injury  by  it  regardless  of  question  of  his  negligence  in  per- 
mitting its  escape  from  his  premises. 

The  decision  of  the  Exchequer  Chamber  was  disapproved  in  De  Gray  v.  Murray, 
69  N.  J.  L.  458,  55  Atl.  237,  holding  that  one  who  kept  a  vicious  dog  upon  his 
premises  was  liable  for  injuries  caused  by  it  if  it  escaped  through  negligence  in 
fastening  or  restraining  it. 

—  When  dangerous  thing  is  brought  by  another  under  authority  of  owner. 
Cited  in  Gillson  v.  North  Grey  R.  Co.  35  U.  C.  Q.  B.  475,  on  the  liability  of  a 

land  owner  for  the  escape  of  a  dangerous  instrumentality  from  his  land,  brought 
there  by  a  contractor. 

Distinguished  in  The  Thetis,  38  L.  J.  Prob.  N.  S.  42,  L.  R.  2  Adm.  &  Eccl.  365, 
22  L.  T.  N.  S.  276,  holding  that  where  one  ship  collided  with  and  sank  another 
while  performing  salvage  services  for  it,  the  owners  were  liable  for  the  damages, 
the  master  of  it  being  negligent;  Ward  v.  Caledon,  19  Ont.  App.  Rep.  69,  hold- 
ing that  where  a  town  authorized  certain  persons  to  erect  a  dam,  which  caused  a 
part  of  the  road  to  be  flooded,  the  town  was  not  liable  for  his  negligence  in 
erecting  the  dam. 
What  is  a  dangerous  instrumentality. 

Distinguished  in  McCord  Rubber  Co.  v.  St.  Joseph  Water  Co.  181  Mo.  678,  81 


49  NOTES  ON  ENGLISH  RULING  CASES.        [1  E.  R.  C.  262 

S.  W.  189,  holding  that  water  brought  into  houses  through  pipes  in  a  manner 
usually  used  in  cities  is  not  a  dangerous  agent,  so  that  the  company  will  be 
liable  for  injuries  caused  by  a  breaking  of  the  pipe. 

The  decision  of  the  Exchequer  Chamber  was  cited  in  Henderson  v.  Sullivan,  16 
L.R.A.(N.S.)    69],  S6  C.  C.  A.  236,  14  Ann.  Cas.  590,  159  Fed.  46,  holding  that 
dynamite  is  a  dangerous  substance  which  is  stored  at  the  owner's  risk. 
Property  along  highway  as  being  held  subject  to  inevitable  risk. 

Cited  in  Tillett  v.  Ward,  52  L.  J.  Q.  B.  N.  S.  61,  L.  R.  10  Q.  B.  Div.  17,  47  L. 
T.  N.  S.  546,  31  Week.  Rep.  197,  47  J.  P.  438,  holding  that  where  the  ox  which 
the  defendant  was  driving  along  the  street,  entered  the  plaintiff's  store  and  did 
damage,  and  the  defendant  was  not  negligent,  the  latter  was  not  liable. 
Burden  of  proving  negligence. 

Cited  in  note  in  18  E.  R.  C.  707,  on  burden  of  proving  negligence. 
Liability  for  acts  of  independent  contractor. 

Cited  in  notes  in  14  L.R.A.  S30,  on  exception  to  rule  that  an  employer  is  not 
liable  for  acts  of  independent  contractor;  66  L.R.A.  147,  on  liability  for  acts  of 
independent  contractor  where  injuries  result  from  employer's  nonperformance 
of  absolute  duties. 

Cited  in  1  Thomas  Neg.  2d  ed.  655,  on  liability  for  negligence  of  independent 
contractor. 

1  E.  R.  C.  262,  NICHOLS  v.  MARSLAND,  L.  R.  2  Exch.  Div.  1,  35  L.  T.  N.  S. 
725,  25  Week.  Rep.  173,  46  L.  J.  Exch.  N.  S.  174,  affirming  the  decision  of 
the  Court  of  Exchequer,  reported  in  L.  R.  10  Exch.  255,  44  L.  J.  Exch.  134. 
Permissible  use  of  property  resulting  in  injury  to  others. 

Cited  in  note  in  2  B.  R.  C.  15,  on  liability  of  keeper  of  dangerous  animal  in 
absence  of  negligence  on  his  part. 

The  decision  of  the  Court  of  Exchequer  was  cited  in  Cumberland  Teleph.  & 
Teleg.  Co.  v.  United  Electric  R.  Co.  12  L.R.A.  544,  42  Fed.  273,  holding  that  the 
telephone  company  was  without  remedy  if  its  service  was  interfered  with  by 
the  escape  of  electricity  from  the  rails  of  a  street  railway  system;  Hannaher 
v.  St.  Paul,  M.  &  M.  R.  Co.  5  Dak.  1,  37  N.  W.  717,  holding  that  a  railroad  com- 
pany was  not  liable  for  damages  caused  by  the  overflowing  of  land  because  of 
the  construction  of  its  roadbed  if  the  latter  was  not  improperly  constructed; 
Pennsylvania  Coal  Co.  v.  Sanderson,  113  Pa.  126,  57  Am.  Rep.  445,  6  Atl.  453. 
18  W.  N.  C.  1S1,  43  Phila.  Leg.  Int.  4G7,  holding  that  damages  resulting  to 
another  from  the  natural  and  lawful  use  of  his  land  by  the  owner  thereof  are  in 
the  absence  of  negligence  or  malice,  damnum  absque  injuria. 

Liability   of   owner    for   escape   of   dangerous    instrumentality    from    his 
land. 

Cited  in  Canada  Southern  R.  Co.  v.  Phelps,  14  Can.  S.  C.  132,  holding  that  a 
railroad  company  was  liable  for  the  destruction  of  buildings  by  sparks  from  its 
engines,  where  it  was  negligent;  Chaz  v.  Les  Cisterciens  Reformes,  12  Manitoba 
L.  Rep.  330,  holding  that  where  the  defendants  had  used  every  precaution  to  put 
out  a  fire  after  burning  a  fire  break,  they  were  not  liable  if  the  fire  revived  and 
escaped  to  other  lands;  Grant  v.  Canadian  P.  R.  Co.  36  N.  B.  528,  holding  that  a 
railroad  company  was  liable  for  the  escape  of  fire  used  in  clearing  ite  right  of 
way,  whether  it  was  negligent  or  not. 

Cited  in  note  in  15  L.R.A. (N.  S.)  547,  on  liability  for  escape  of  dangerous 
substance  stored  on  premises. 

Notes   on   E.   R.   C— 4. 


]   E.  R.  C.  262]        NOTES  ON  ENGLISH  RULING  CASES.  50 

The  decision  of  the  Court  of  Exchequer  was  cited  in  Southwestern  Teleg.  & 
Teleph.  Co.  v.  Beatty,  63  Ark.  65,  37  S.  W.  570,  holding  that  a  telephone  com- 
pany was  not  liable  for  injuries  to  a  person  on  a  street  caused  by  the  falling  of 
a  brick  from  a  pier  used  to  support  its  wires,  unless  it  was  negligent;  Triple- 
State  Natural  Gas  &  Oil  Co.  v.  Wellman,  114  Ky.  79,  70  S.  W.  49,  1  Ann.  Cas. 
64,  holding  that  a  manufacturer  of  lighting  gas  is  not  an  insurer  so  as  to  be 
liable  in  case  of  injury  because  of  an  explosion  of  the  gas,  unless  he  is  negligent; 
Waller  v.  Ross,  100  Minn.  7,  12  L.R.A.(N.S.)  721,  117  Am.  St.  Rep.  661,  110  N. 
W.  252,  10  Ann.  Cas.  715,  holding  that  one  maintaining  an  awning  over  a  side- 
walk was  not  liable  for  injuries  to  a  person  on  the  street  by  the  falling  of  the 
awning  in  the  absence  of  negligence;  Roberts  v.  Mitchell,  21  Ont.  App.  Rep.  433, 
holding  that  one  was. not  liable  if  a  cornice  on  his  building  became  loosened  in 
course  of  time  by  natural  causes,  and  fell  to  the  street  injuring  another,  unless 
he  was  negligent. 

The  decision  of  the  Court  of  Exchequer  was  distinguished  in  Jennings  v.  Davis, 
109  C.  C.  A.  451,  187  Fed.  703,  holding  that  owner  of  pipe  line  used  for  trans- 
portation of  petroleum  is  bound  to  exercise  only  degree  of  care  man  of  ordinary 
prudence  would  exercise  under  same  circumstances,  if  whole  risk  was  his  own. 

—  Caused  by  act  of  third  party  over  whom  lie  has  no  control. 

Cited  in  Baker  v.  Snell,  [1908]  K.  B.  825,  2  B.  R.  C.  1,  77  L.  J.  K.  B.  N.  S. 
1090,  24  Times  L.  R.  811,  52  Sol.  Jo.  681  (dissenting  opinion),  on  liability  of 
person  keeping  savage  animal  for  injury  done  by  it,  where  immediate  cause  of 
injury  is  act  of  third  person. 

The  decision  of  the  Court  of  Exchequer  was  cited  in  Mahoney  v.  Libbey,  123 
Mass.  20,  25  Am.  Rep.  6,  holding  that  where  the  walls  of  a  building  were  left 
standing  after  a  fire,  and  became  dangerous  by  the  removal  of  the  walls  of  an- 
other building  owned  by  a  third  party  the  owner  of  the  former  was  not  liable  for 
injuries  by  their  fall,  unless  he  had  notice  of  their  condition. 

—  By  latent  defects  in  construction. 

The  opinion  of  the  Exchequer  Court  was  cited  in  Gorham  v.  Gross,  125  Mass. 
232,  28  Am.  Rep.  224,  holding  that  where  one  party  erected  a  party  wall  between 
his  land  and  another's,  the  former  was  liable  for  injuries  sustained  by  the  latter 
if  the  wall  fell  because  of  defects  in  its  erection. 

—  Escape  of  water  artificially  stored. 

Cited  in  Hart  v.  McMullin,  32  N.  S.  340,  holding  that  one  who  stores  up 
large  quantities  of  water  on  his  lands  is  responsible  for  its  safe  keeping;  Box 
v.  Judd,  L.  R.  4  Exch.  Div.  76,  48  L.  J.  Exch.  N.  S.  417,  41  L.  T.  N.  S.  97,  27 
Week.  Rep.  415,  holding  that  if  a  person  who  has  gathered  water  upon  his 
premises  is  not  negligent  and  the  water  escapes  through  no  fault  of  his,  he  is  not 
liable;  Thomas  v.  Birmingham  Canal  Co.  49  L.  J.  Q.  B.  N.  S.  851,  43  L.  T.  N.  S. 
435,  45  J.  P.  21,  holding  that  where  a  sluice  way  from  the  defendant's  canal  was 
opened  to  leave  out  water  during  a  rainfall  which  was  unprecedented  as  to 
amount  and  duration,  and  unless  the  water  was  released  it  would  have  broken 
out  with  the  same  result,  the  defendants  were  not  liable. 

Cited  in  notes  in  1  E.  R.  C.  266,  on  liability  for  injury  by  water,  etc.,  escaping 
from  place  where  it  is  stored;  25  E.  R.  C.  423,  on  liability  for  injury  to  adjoining 
land  due  to  protecting  one's  own  land  from  flood. 

Cited  in  3  Farnham  Waters  2548,  on  liability  for  injuries  caused  by  giving 
way  of  dam;  3  Farnham  Waters,  2805,  on  liability  for  injury  by  stored  waters; 
3  Farnham  Waters,  2821,  on  liability  for  contributing  to  injury  by  flood. 

Distinguished  in  Simonton  v.  Loring,  68  Me.  164,  2S  Am.  Rep.  29,  holding  that 


51  NOTES  ON  ENGLISH  RULING  CASES.       |l    E.   R.  C.  262 

where  the  tenants  on  the  second  floor  of  a  tenement  left  the  water  faucet  open 
and  flooded  the  lower  tenement,  they  were  liable  to  the  occupants  of  the  lower 
one;  Dixon  v.  Metropolitan  l!d.  of  Works,  L.  R.  7  Q.  B.  Div.  418,  50  L.  J.  Q.  B. 
N.  S.  772,  45  L.  T.  N.  S.  412,  30  Week.  Rep.  83,  46  J.  P.  4,  holding  that  where  the 
defendants  maintained  a  sewer,  and  during  a  heavy  rain  the  flood  gates  from  the 
sewer  were  opened  to  relieve  the  over  supply  of  water  therefrom,  and  thereby 
caused  injury  to  the  plaintiff's  dock,  the  defendants  were  liable  unless  authorized 
by  law. 

The  decision  of  the  Court  of  Exchequer  was  distinguished  in  St.  John  Y.  M.  C. 

A.  v.  Hutchinson,  18  N.  B.  523,  holding  that  where  the  water  gathered  in  the 
cellar  of  a  building  which  had  been  burned,  and  soaked  through  to  an  adjoining 
cellar,  the  owner  of  the  former  was  not  liable  to  the  owner  of  the  latter;  Clarke 
v.  Rama  Timber  Transport  Co.  9  Ont.  Rep.  68,  holding  that  where  the  defendants 
were  authorized  to  build  a  canal  alongside  of  a  stream,  they  were  not  liable  for 
the  breaking  of  the  artificial  bank,  thereby  causing  the  plaintiff's  land  to  become 
flooded,  whether  caused  by  act  of  God  or  not. 

Storms  and  floods  as  vis  major  or  act  of  God. 

Cited  in  Ohio  &  M.  R.  Co.  v.  Ramey,  139  111.  9,  32  Am.  St.  Rep.  176,  28  N.  E. 
1087,  holding  that  a  flood  in  order  to  come  within  the  meaning  of  the  phrase, 
Act  of  God,  must  not  only  be  more  than  extraordinary  but  must  be  such  as  not 
to  be  reasonably  anticipated  from  experience;   Carney  v.  Caraquet  R.  Co.  29  N. 

B.  425,  holding  that  the  test  as  to  whether  a  storm  is  an  act  of  God  within  the 
meaning  of  that  term  is  whether  it  could  have  been  reasonably  anticipated,  not 
whether  it  was  unprecedented;  Garfield  v.  Toronto,  22  Ont.  App.  Rep.  128,  hold- 
ing that  an  extraordinary  rainfall  may  be  properly  treated  as  an  act  of  God, 
though  it  is  not  unprecedented,  if  there  is  nothing  in  the  former  experience  to 
point  to  its  recurrence;  Sawyer  v.  Ives,  Rap.  Jud.  Quebec,  4  Q.  B.  374,  holding 
that  a  rain  storm,  extraordinary  but  not  unprecedented,  nor  of  such  violence 
that  it  could  not  reasonably  have  been  anticipated  does  not  constitute  vis  major; 
Nitro-Phosphate  &  Odam's  Chemical  Manure  Co.  v.  London  &  St.  K.  Docks  Co. 
L.  R.  9  Ch.  Div.  503,  37  L.  T.  N.  S.  330,  27  Week.  Rep.  267,  1  E.  R.  C.  276,  hold- 
ing that  in  order  that  an  extraordinary  natural  event  should  be  an  act  of  God  in 
the  legal  sense,  it  is  sufficient  that  its  happening  could  not  have  been  reasonably 
expected,  though  it  has  happened  before,  and  nothing  leads  to  the  inference  that  it 
will  not  happen  again. 

The  decision  of  the  Court  of  Exchequer  was  cited  in  Central  Trust  Co.  v. 
Wabash,  St.  L.  &  P.  R.  Co.  57  Fed.  441,  holding  that  railroad  company  was  not 
liable  for  injury  from  water  of  extraordinary  flood  which  broke  embankment 
flooding  plaintiff's  property. 

Vis  major  or  act  of  God  excusing  owner  for  damage  by  dangerous  instru- 
mentalities. 

Cited  in  Cork  v.  Blossom,  102  Mass.  330,  26  L.R.A.  256,  44  Am.  St.  Rep.  362. 
38  N.  E.  495,  holding  that  one  who  builds  a  tall  chimney  must  make  it  so  that 
it  will  withstand  any  gales  which  experience  shows  are  reasonably  to  be  ex- 
perienced in  that  locality;  Ward  v.  Caledon,  19  Ont.  App.  Rep.  69,  holding  that 
the  act  of  Cod  or  vis  major  will  excuse  any  one  storing  water  in  large  quantities 
upon  his  land,  if  he  uses  all  care  possible  to  keep  it  safely;  McMillan  v.  Southwest 
Boom  Co.  17  N.  B.  715,  holding  that  boom  company  was  not  bound  to  protect 
navigation  of  river  against  extraordinary  floods,  and  they  were  not  liable  for  ob- 
struction to  navigation  caused  by  vis  major,  and  not  through  its  own  negligence. 

Distinguished  in  Tennant  v.  Hall,  27  N.  B.  499,  holding  that  where  a  drain 


1  E.  E.  C.  262]        NOTES  ON  ENGLISH  RULING  CASES.  52 

pipe  was  maintained  from  a  roof  for  the  benefit  of  two  tenants,  and  during  a 
severe  rainstorm  it  proved  insufficient  to  carry  off  the  water  one  tenant  who 
maintained  the  pipe  was  not  liable  for  injuries  to  the  other. 

The  decision  of  the  Court  of  Exchequer  was  cited  in  Murphy  v.  Gillum,  73  Mo. 
App.  487,  holding  that  the  action  of  the  frost  in  making  water  percolate  through 
the  banks  of  a  reservoir  was  an  act  of  God  so  that  the  owner  thereof  was  not 
liable. 
New  trial  where  verdict  is  against  the  evidence. 

Decision  of  the  Court  of  Exchequer  was  cited  in  Walton  v.  York  County,  32  U. 
C.  C.  P.  35,  on  the  granting  of  a  new  trial  on  grounds  that  verdict  is  against 
the  evidence. 
Remoteness  of  damages. 

Cited  in  note  in  8  E.  R.  C.  412,  on  remoteness  of  damages. 

1  E.  R.  C.  276,  NITRO-PHOSPHATE  CO.  v.  LONDON  &  ST.  K.  DOCKS  CO.  L, 

R.  9  Ch.  Div.  503,  39  L.  T.  N.  S.  433,  27  Week.  Rep.  267. 
Liability  for  failure  to  fulfil  statutory  duty. 

Cited  in  Great  Western  R.  Co.  v.  Brown,  3  Can.  S.  C.  159,  holding  that  railway 
company  is  guilty  of  negligence  in  failing  to  apply  air  breaks  at  sufficient  dis- 
tance from  crossing  to  enable  it  to  stop  before  crossing  other  railroad  as  required 
by  statute;  White  v.  Gosfield,  10  Ont.  App.  Rep.  555,  holding  that  where  a  drain 
was  constructed  by  a  municipality  and  it  neglected  to  repair  it,  and  injury  was 
occasioned  thereby  the  municipality  was  liable  for  the  breach  of  the  statutory 
duty  to  repair. 
—  As  excusing  damages  resulting  from  negligence  or  accident. 

Cited  in  De  Grazia  v.  Piccardo,  15  Pa.  Super.  Ct.  107,  holding  that  where  the 
injury  was  the  result  of  negligence  on  the  part  of  the  employer  connected  with  a 
risk  assumed  by  the  servant,  the  damages  may  be  separated  as  compared  to  each 
cause. 
Extraordinary  events  as  acts  of  God. 

Lited  in  Willson  v.  Boise  City,  20  Idaho,  133,  36  L.R.A.(N.S.)  1158,  117  Pac. 
115,  1  N.  C.  C.  A.  203,  holding  that  rainfall  or  cloudburst  which  has  irregularly 
and  infrequently  occurred  a  number  of  times  within  memory  of  man  in  par- 
ticular locality,  and  caused  heavy  freshets,  is  not  classed  as  "act  of  God"  in  law 
of  negligence;  Ohio  &  M.  R.  Co.  v.  Ramey,  139  111.  9,  32  Am.  St.  Rep.  176,  28  N. 
E.  10S7,  holding  that  railroad  must  provide  in  making  embankments,  for  escape 
of  waters  of  such  unusual  or  extraordinary  floods  as  it  should  have  anticipated 
would  occur,  because  they  had  occasionally  occurred  at  intervals  of  irregular 
duration;  Cork  v.  Blossom,  162  Mass.  330,  26  L.R.A.  256,  44  Am.  St.  Rep.  362,  38 
N.  E.  495,  holding  that  one  maintaining  a  high  chimney  on  his  land  was  liable  to 
injuries  to  adjoining  property  occasioned  by  a  fall  thereof  caused  by  an  extraordi- 
nary high  wind  which  might  reasonably  have  been  expected;  Garfield  v.  Toronto, 
22  Ont.  App.  Rep.  128,  holding  that  in  order  that  an  extraordinary  rainfall  in 
order  to  be  treated  as  an  act  of  God,  need  only  be  such  as  could  not  reasonably  be 
expected,  though  it  had  occurred  one  or  more  times  previously ;  Mackenzie  v.  West 
Flamborough,  26  Ont.  App.  Rep.  198,  holding  that  damage  by  reason  of  flood  be- 
cause a  drain  is  out  of  repair  is  not  excused  because  the  injury  was  caused  by 
an  extraordinary  rainfall,  unless  it  would  have  occurred  if  the  drain  were  in 
proper  condition;  Sawyer  v.  Ives,  Rap.  Jud.  Quebec,  4  B.  R.  374,  holding  extra- 
ordinary rainstorm  causing  dam  to  give  way,  not  vis  major;   Burt  v.  Victoria 


53  NOTES  ON  ENGLISH  RULING  CASES.       [1  E.  R.  C.  296 

Graving  Dock  Co.  47  L.  T.  N.  S.  378,  holding  that  where  the  defendants  were 
negligent  in  maintaining  the  height  of  the  frontage  wall,  they  were  not  excused 
from  liability  because  an  act  of  God  intervened  to  cause  the  damages. 

Distinguished  in  Dixon  v.  Metropolitan  Bd.  of  Works,  L.  R.  7  Q.  B.  Div.  418, 
50  L.  J.  Q.  B.  N.  S.  772,  45  L.  T.  N.  S.  312,  30  Week.  Rep.  83,  46  J.  P.  4,  holding 
that  where  the  defendants  opened  the  flood  gates  to  a  sewer  to  let  out  an  ac- 
cumulation of  water  which  had  gathered  there  from  a  hard  rain,  the  defendants 
were  liable  as  the  injury  did  not  result  from  an  act  of  God. 

Apportionment    of    damage    resulting    from     independent    contributing 
causes. 

Cited  in  Carhart  v.  State,  115  App.  Div.  1,  100  N.  Y.  Supp.  499,  holding  that 
state  was  only  liable  for  such  part  of  damage  sustained  as  would  not  have  re- 
sulted except  for  its  negligence,  where  water  course  overflowed  in  part  because  of 
rainfall  and  in  part  by  state's  negligence  in  turning  water  from  canal  into 
watercourse;  Mundy  v.  New  York,  L.  E.  &  W.  R.  Co.  75  Hun,  479,  27  N.  Y.  Supp. 
409,  on  the  apportionment  of  damages  resulting  from  two  independent  causes; 
Deegan  v.  Gutta  Percha  &  Rubber  Mfg.  Co.  131  App.  Div.  101,  115  N.  Y.  Supp. 
291,  to  the  point  that  jury  had  right  to  determine  compensation  for  injury  to 
employer's  hand  and  arm  in  view  of  increased  injury  caused  by  negligence  of  de- 
fendant although  some  injury  would  have  occurred  in  absence  of  such  negligence. 
Duty  to  maintain  sea  walls. 

Cited  in  2  Farnham  Waters,  1331,  1332,  on  duty  to  construct  and  maintain 
artificial  sea  walls. 

1  E.  R.  C.  296,  VAUGHAN  v.  TAFF  VALE  R.  CO.  5  Hurlst.  &  N.  679,  6  Jur.  N. 
S.  899,  2  L.  T.  N.  S.  394,  8  Week.  Rep.  549,  29  L.  J.  Exch.  N.  S.  247,  reversing 
the  decision  of  the  Court  of  Exchequer,  reported  in  3  Hurlst.  &  N.  743,  28 
L.  J.  Ex.  41. 
Liability  for  injuries  resulting  from  the  operation  of  a  railroad. 

Cited  in  Hannaher  v.  St.  Paul,  M.  &  M.  R.  Co.  5  Dak.  1,  37  N.  W.  717,  holding 
that  railroad  company  is  not  liable  for  damages  to  land,  through  which  it 
purchased  right  of  way,  caused  by  surface  water  overflowing  land,  where  road 
was  constructed  with  ordinary  skill  and  precaution;  Hammersmith  &  C.  R. 
Co.  v.  Brand,  L.  R.  4  H.  L.  171,  38  L.  J.  Q.  B.  N.  S.  265,  21  L.  T.  N.  S. 
238,  18  Week.  Rep.  12,  1  Eng.  Rul.  Cas.  623,  7  Eng  Rul.  Cas.  380,  reversing 
L.  R.  2  Q.  B.  223,  holding  that  a  land  owner  cannot  recover  compensation 
under  the  statute  from  a  railroad  for  inconvenience  and  damage  caused  by 
vibration  from  running  of  trains,  even  though  the  property  decreases  in  value 
thereby;  R.  v.  Sheward,  L.  R.  9  Q.  B.  Div.  741,  49  L.  J.  Q.  B.  N.  S.  716,  on  the 
right  to  compensation  for  injuries  caused  by  the  operation  of  a  railroad. 
Liability  of  railroad  company  for  fires  started  by  sparks  from  their  en- 
gines. 
Cited  in  Tilley  v.  St.  Louis  &  S.  F.  R.  Co.  49  Ark.  535,  6  S.  W.  8,  holding  that 
under  statute  prima  facie  case  is  made  in  action  against  railroad  company  for 
damage  caused  by  fire,  when  it  is  proved  that  fire  originated  from  engine,  and 
company  can  exonerate  itself  only  by  showing  absence  of  negligence;  Phila- 
delphia &  R.  R.  Co.  v.  Hendrickson,  80  Pa.  182,  21  Am.  Rep.  97,  holding  that 
where  railroad  company  uses  most  approved  spark  arresters,  and  proper  care  in 
running  their  engines,  landowner  has  no  remedy  for  injury  to  property  by  fire 
thrown  from  locomotive;  Fraser  v.  Pere  Marquette  R.  Co.  18  Ont.  L.  R.  589, 
holding  that  a  railway  company  was  not  liable  for  the  destruction  of  bailed  hay 


1  E.  R.  C.  20G]        NOTES  ON  ENGLISH  RULING  CASES.  54 

piled  along  side  of  its  right  of  way  while  waiting  to  be  shipped;  Missouri,  K. 
&.  T.  R.  Co.  v.  Wilder,  3  Ind.  Terr.  85,  53  S.  W.  490;  Patton  v.  St.  Louis  &  S.  F. 
R.  Co.  87  Mo.  117,  56  Am.  Rep.  440;  Morris  &  E.  R.  Co.  v.  State,  36  N.  J.  L.  553; 
H.  &  T.  C.  R.  R.  Co.  v.  McDonough,  1  Tex.  App.  Civ.  Cas.  (White  &  W.)  354; 
Robinson  v.  New  Brunswick,  23  N.  B.  323;  Ball  v.  Grand  Trunk  R.  Co.  16  U.  C. 
C.  P.  252;  Jaffrey  v.  Toronto,  G.  &  B.  R.  Co.  24  U.  C.  C.  P.  271,— holding  that  a 
railroad  company  was  not  liable  for  fires  set  by  sparks  from  their  locomotives 
in  the  absence  of  negligence,  where  their  use  was  authorized  by  law ;  Michigan 
C.  R.  Co.  v.  Wealleans,  24  Can.  S.  C.  309  (reversing  21  Ont.  App.  Rep.  297),  hold- 
ing same  as  to  foreign  railroad  operating  over  the  line  of  a  domestic  one;  Oat- 
man  v.  Michigan  C.  R.  Co.  ]  Ont.  L.  Rep.  145,  holding  same  and  the  burden  is  on 
the  plaintiff  to  show  prima  facie  negligence;  Mansfield  Mut.  Ins.  Co.  v.  Cleveland, 
C.  C.  &  St.  L.  R.  Co.  74  Ohio  St.  30,  77  N.  E.  269,  6  A.  &  E.  Ann.  Cas.  782; 
St.  Louis  &  S.  F.  R.  Co.  v.  Mathews,  165  U.  S.  1,  41  L.  ed.  611,  17  Sup.  Ct.  Rep. 
243;  McGibbon  v.  Northern  &  N.  W.  R.  Co.  11  Ont.  Rep.  307  (dissenting  opin- 
ion) ;  Canadian  P.  R.  Co.  v.  Roy,  Rap.  Jud.  Quebec,  9  B:  R.  551  (reversed  in  Rap. 
Jud.  Quebec,  12  B.  R.  543), — on  the  liability  of  a  railway  company  for  fires 
started  by  sparks  from  their  engines ;  Canada  C.  R.  Co.  v.  McLaren,  8  Ont.  App. 
Rep.  5C4,  holding  that  railroad  company  was  liable  for  injury  caused  by  fire 
originating  from  spark  from  locomotive  having  imperfect  smokestack;  Moxley  v. 
Canada  Atlantic  R.  Co.  14  Ont.  App.  309,  holding  that  in  action  for  loss  by  fire 
alleged  to  be  caused  by  spark  from  passing  train  presumption  of  fact  arose  upon 
evidence  from  which  jury  might  infer  that  certain  engine  was  cause  of  fire; 
Campbell  v.  McGregor,  29  N.  B.  644  (dissenting  opinion),  on  liability  of  rail- 
road company  for  fire  caused  by  spark  from  locomotive  although  owner  did  not 
take  measures  to  protect  property;  Bough  ton  v.  Midland  Great  Western  R.  Co. 
Ir.  Rep.  7  C.  L.  169;  Fremantle  v.  London  &  N.  W.  R.  Co.  31  L.  J.  C.  P.  N.  S. 
12,  10  C.  B.  N.  S.  89,  9  Week.  Rep.  611;  London,  B.  &  S.  C.  R.  Co.  v.  Truman, 
L.  R.  11  App.  Cas.  45,  55  L.  J.  Ch.  N.  S.  354,  54  L.  T.  N.  S.  250,  34  Week.  Rep. 
657,  22  Eng.  Rul.  Cas.  80,  50  J.  P.  388,  (reversing  L.  R.  29  Ch.  Div.  99)  ;  Buccleuch 
v.  Metropolitan  Bd.  of  Works,  L.  R.  5  Exch.  221,  3  Eng.  Rul.  Cas.  455,  L.  R.  3 
Exch.  300,  L.  R.  5  II.  L.  418,  37  L.  J.  Exch.  N.  S.  177,  39  L.  J.  Exch.  N.  S.  130, 
41  L.  J.  Exch.  N.  S.  137;  Guardians  Armagh  Union  v.  Bell,  [1900]  2  Ir.  Q.  B. 
371, — on  the  liability  of  a  railway  for  fires  started  by  their  engines  where  their 
use  was  authorized  by  law. 

Cited  in  3  Elliott  Railr.  2d  ed.  501,  on  common  law  liability  of  railroad  com- 
pany for  fires;  3  Elliott  Railr.  2d  ed.  510,  on  nonliability  of  railroad  company 
for  fires  where  spark  arresters  in  ordinary  use  were  used;  2  Thompson  Neg.  797, 
on  measure  of  care  required  by  railroad  company  in  use  of  fire. 

Distinguished  in  Union  P.  R.  Co.  v.  De  Bush,  12  Colo.  294,  3  L.R.A.  350,  13 
Am.  St.  Rep.  221,  20  Pac.  752,  holding  that  under  the  laws  of  Colorado,  a  rail- 
road was  liable  for  all  fires  set  by  sparks  from  their  engines;  Grant  v.  Canadian 
P.  R.  Co.  36  N.  B.  528,  holding  that  a  railroad  company  was  liable  for  fires  ex- 
tending from  their  right  of  way,  where  it  was  used  for  clearing  purposes,  to  the 
adjoining  lands;  Furlong  v.  Carroll,  7  Ont.  App.  Rep.  145,  holding  that  where  a 
person  accidentally  set  a  fire  on  his  land  and  thinking  he  had  extinguished  it  left 
it,  and  it  spread,  he  was  liable  even  in  the  absence  of  negligence;  Hilliard  v. 
Thurston,  9  Ont.  App.  Rep.  514,  holding  same  as  to  steamboats  unauthorized  to 
do  business;  Jones  v.  Festiniog  R.  Co.  L.  R.  3  Q.  B.  733,  37  L.  J.  Q.  B.  N.  S.  214, 
9  Best  &  S.  835,  18  L.  T.  N.  S.  902,  17  Week.  Rep.  28,  holding  that  where  the 
statute  authorized  the  building  and  operation  of  a  railroad  but  did  not  authorize 


,35  NOTES  ON   ENGLISH  RULING  ('ASICS.        fl   E.  R.  C.  296 

the  use  of  steam  locomotives,  the  company  was  liable  for  fires  set  from  their 
engines  even  in  the  absence  of  negligence;  Powell  v.  Fall,  L.  R.  5  Q.  B.  Div.  597, 
49  L.  J.  Q.  B.  N.  S.  428,  43  L.  T.  N.  S.  562,  holding  that  the  defendant  was  liable 
for  fires  started  by  sparks  from  a  steam  traction  engine  driven  along  a  public 
highway,  though  the  engine  conformed  to  the  locomotive  law. 

The  decision  of  the  Court  of  Exchequer  was  cited  in  Kellogg  v.  Chicago  &  N. 
W.  R.  Co.  26  AVis.  223,  7  Am.  Rep.  69,  holding  that  where  sparks  from  engine 
set  fire  to  dry  grass  accumulated  on  railroad  land  and  spread  to  plaintiff's  land, 
destroying  his  property,  question  whether  railroad  was  negligent  in  leaving  its 
land  in  that  condition  was  for  jury;  Lackawanna  &  B.  R.  Co.  v.  Doak,  52  Pa. 
379,  91  Am:  Dec.  166,  23  Phila.  Leg.  Int.  412,  holding  that  it  is  duty  of  railroad 
company  to  make  use  of  latest  improvements  to  prevent  damage  from  spreading 
fire,  and  failure  to  do  so  is  negligence  rendering  it  liable;  Pennsylvania  R.  Co.  v. 
Hope,  SO  Pa.  373,  21  Am.  Rep.  100,  2  W.  N.  C.  385,  on  the  liability  of  a  railroad 
company  for  fires  set  by  sparks  from  its  locomotives. 

The  decision  of  the  Court  of  Exchequer  was  distinguished  in  Rowell  v.  Railroad 
Co.  57  N.  H.  132,  24  Am.  Rep.  59,  holding  that  where  the  statute  made  the  rail- 
road company  absolutely  liable  for  all  fires  set  along  its  roads  the  question  of 
contributory  negligence  did  not  enter. 

—  As  affected  by  negligence. 

Cited  in  Wallace  v.  New  York,  N.  H.  &  H.  R.  Co.  208  Mass.  16,  94  N.  E.  306, 
holding  that  in  absence  of  statute  railroad  company  is  not  liable  for  injury  to 
adjoining  property  caused  by  fire  in  absence  of  negligence;  Philadelphia  &  R.  R. 
Co.  v.  Hendrickson,  80  Pa.  182,  21  Am.  Rep.  97,  33  Phila.  Leg.  Int.  184,  holding 
that  where  actual  negligence  in  running  engine  is  proved  and  loss  from  fire  re- 
sults, mere  condition  of  landowner's  property  is  no  defense;  Canada  Southern  R. 
Co.  v.  Phelps,  14  Can.  S.  C.  132,  holding  that  if  a  railroad  company  is  guilty  of 
negligence  in  operating  its  locomotives  it  is  liable  for  all  damages  necessarily 
resulting;  Campbell  v.  McGregor,  29  N.  B.  644,  holding  that  the  railroad  com- 
pany was  liable  for  the  destruction  of  the  plaintiff's  barn  full  of  ha3%  through 
sparks  from  a  defective  smokestack;  Conlon  v.  City  R.  Co.  8  N.  S.  209  (dissent- 
ing opinion),  on  the  liability  of  a  railroad  company  for  injuries  without  proof 
of  negligence;  Rainville  v.  Grand  Trunk  R.  Co.  25  Ont.  App.  Rep.  242;  Holmes 
v.  Midland  R.  Co.  35  U.  C.  Q.  B.  253, — holding  that  a  railroad  company  was 
liable  where  it  allowed  brushwood  to  gather  along  its  track  so  that  fire  was 
caused  to  spread  to  adjoining  lands. 

Distinguished  in  Weallcans  v.  Canada  Southern  R.  Co.  21  Ont.  App.  Rep.  207, 
holding  that  foreign  railway  company,  in  running  engines  over  line  of  railway 
in  this  province,  is  subject  to  common  law  liability  for  emitting  fire  and  is  liable 
in  damages  therefor  without  proof  of  negligence. 

—  Of  owners  of  steam  engines,  in  general. 

Cited  in  Brewer  v.  Humble,  26  N.  B.  495,  holding  as  to  mill  owners,  that  they 
were  liable  only  in  case  of  negligence. 

What  constitutes  negligence. 

Cited  in  Scott  v.  Crews,  2  S.  C.  522,  holding  that  ordinary  care  by  bank  acting 
as  bailee  of  collateral  signifies  that  care  which  men  of  common  prudence  generally 
take  of  like  articles  of  their  own  at  time  and  place  where  question  arises;  Holden 
v.  Missouri  B.  Co.  108  Mo.  App.  665,  84  S.  W.  133,  to  the  point  that  negligence 
is  absence  of  care,  according  to  circumstances;  Putney  v.  Keith,  08  111.  App.  285, 
holding  housekeeper  not  liable  for  injury  to  infant  visitor  from  falling  into  pail 
of  hot  water  on  floor  of  kitchen;  Dean  v.  Kansas  City  St.  L.  &  C.  R.  Co.  100  Mo. 


1  E.  E.  C.  296]        NOTES  ON  ENGLISH  RULING  CASES.  56 

386,  97  S.  W.  910,  holding  that  negligence  is  the  absence  of  due  care,  and  is  a 
failure  to  act  with  due  foresight;  Longabaugh  v.  Virginia  City  &  T.  B.  Co.  9 
Nev.  271,  holding  that  a  failure  of  a  railroad  company  to  use  best  known  ap- 
pliances to  prevent  fires  by  sparks  from  the  engines  was  negligence;  Stewart  t. 
Long  Island  E.  Co.  54  App.  Div.  623,  66  N.  Y.  Supp.  436,  on  the  degree  of  care 
required  to  be  exercised,  so  as  not  to  be  guilty  of  negligence;  Lackawanna  &  B. 
R.  Co.  v.  Doak,  52  Pa.  379,  91  Am.  Dec.  166,  holding  that  the  failure  of  the  rail- 
road company  to  use  reasonable  precautions  to  prevent  the  escape  of  sparks  was 
negligence;  Goff  v.  Chippewa  Eiver  &  M.  E.  Co.  86  Wis.  237,  56  N.  W.  465,  on 
what  constitutes  actionable  negligence;  Dulieu  v.  White  [1901]  2  K.  B.  669,  70 
L.  J.  K.  B.  N.  S.  837,  50  Week.  Rep.  76,  85  L.  T.  N.  S.  126,  17  Times  L.  E.  555; 
New  Westminster  v.  Brighouse,  20  Can.  S.  C.  520, — on  the  definition  of  the  word 
negligence;  Henderson  v.  St.  John,  14  N.  B.  72,  on  the  breach  of  an  obligation 
to  use  care  as  constituting  negligence;  Eobertson  v.  Halifax  Coal  Co.  20  N.  S. 
517,  holding  that  the  defendant  was  negligent  where  it  failed  to  erect  a  warning 
sign  at  a  railroad  crossing  maintained  by  it  and  failed  to  ring  a  bell  or  sound  a 
whistle  on  its  trains  at  the  crossing;  Garfield  v.  Toronto,  22  Ont.  App.  Eep.  128, 
holding  that  where  the  city  had  used  all  possible  contrivances  to  prevent  water 
from  flowing  back  from  a  sewer,  it  was  not  negligent  if  water  flowed  back  on  ae- 
eount  of  an  extraordinary  rain. 

Cited  in  note  in  65  L.E.A.  635,  on  rationale  of  doctrine  of  absence  of  liability 
of  employer  for  negligence  of  independent  contractor. 

The  decision  of  the  Court  of  Exchequer  was  cited  in  Atkinson  v.  Goodrich 
Transp.  Co.  60  Wis.  141,  50  Am.  Eep.  352,  18  N.  W.  764,  holding  that  a  failure 
to  ward  against  a  result  which  could  not  reasonably  have  been  expected  is  not 
negligence. 

—  Permitting  accumulation  of  combustibles. 

Cited  in  Jones  v.  Michigan  C.  E.  Co.  59  Mich.  437,  26  N.  W.  662;  Salmon  t. 
Delaware,  L.  &  W.  E.  Co.  38  N.  J.  L.  5,  20  Am.  Eep.  356 ;  Delaware,  L.  &  W.  E. 
Co.  v.  Salmon,  39  N.  J.  L.  299,  23  Am.  Eep.  214;  Webb  v.  Eome,  W.  &  O.  E.  Co. 
49  N.  Y.  420,  10  Am.  Eep.  389, — holding  that  the  failure  to  exercise  a  due  degree 
of  care  in  keeping  the  track  free  from  combustible  materials  was  negligence; 
Kellogg  v.  Chicago  &  N.  W.  E.  Co.  26  Wis.  223,  7  Am.  Eep.  69,  holding  that  in 
allowing  dead  grass  and  weeds  to  gather  along  the  right  of  way  the  railroad  com- 
pany was  negligent  so  as  to  become  liable  for  fires  set  by  its  engines;  Smith  v. 
London  &  S.  W.  E.  Co.  40  L.  J.  C.  P.  N.  S.  21,  L.  E.  6  C.  P.  14,  23  L.  T.  N.  S. 
678,  19  Week.  Eep.  230,  18  E.  E.  C.  726  (affirming  L.  E.  5  C.  P.  98,  39  L.  J.  C. 
P.  68,  21  L.  T.  N.  S.  668,  18  Week.  Eep.  343),  holding  that  where  a  railroad  com- 
pany trimmed  its  hedges  and  cut  the  grass  along  its  right  of  way  and  left  the 
trimmings  and  dead  grass  lie,  it  was  negligent,  though  its  engines  were  properly 
constructed. 
Contributory  negligence. 

The  decision  of  the  Court  of  Exchequer  was  cited  in  Central  Branch  Union  P.  E. 
Co.  v.  Hotham,  22  Kan.  41,  on  what  constitutes  contributory  negligence;  Missis- 
sippi Home  Ins.  Co.  v.  Louisville,  N.  O.  &  T.  E.  Co.  70  Miss.  119,  12  So.  156, 
holding  that  owner  of  land  adjacent  to  railroad  is  not  bound  to  manage  his 
property  so  as  to  provide  against  danger  from  negligent  emission  of  sparks  by 
passing  locomotives. 

—  Accumulating  combustibles  near  railroad. 

Cited  in  Kimball  v.  Borden,  97  Va.  477,  34  S.  E.  45,  holding  that  the  accumula- 
tion of  combustible  material  along  a  railroad  right  of  way  is  not  contributory 


57  NOTES  OX  ENGLISH  RULING  CASES.       [1  E.  R.  C.  29G 

negligence  per  se;  Snyder  v.  Pittsburgh,  C.  C.  &  St.  L.  R.  Co.  11  W.  Va.  14,  hold- 
ing that  it  was  not  contributory  negligence  for  a  farmer  to  allow  weeds  to  remain 
on  his  land  adjoining  a  railroad  right  of  way,  or  to  allow  dead  leaves  to  gather 
there;  Murphy  v.  Cbicago  &  N.  W.  R.  Co.  45  Wis.  222,  30  Am.  Rep."  721,  on  the 
maintenance  of  combustible  material  beside  the  railroad  right  of  way,  as  con- 
tributory negligence;  Winnipeg  Oil  Co.  v.  Canadian  Northern  R.  Co.  21  Mani- 
toba L.  Rep.  274,  holding  that  no  contributory  negligence  on  part  of  owner  of 
adjoining  land  unless  wanton  or  such  as  amounts  to  fraud  in  increasing  risk  of 
fire  from  railroad,  is  available  as  defense. 

Cited  in  note  in  12  L.R.A.(N.S.)   62G,  on  duty  of  abutter  to  prevent  accumula- 
tion of  combustibles  near  railway. 

The  decision  of  the  Court  of  Exchequer  was  cited  in  Indiana  Clay  Co.  v.  Balti- 
more &  0.  S.  W.  R.  Co.  31  Ind.  App.  25S,  67  N.  E.  704,  holding  that  one  in  enjoying 
and  using  his  property  in  the  usual  way  witnout  reference  to  the  close  proximity 
of  the  railroad  is  not  guilty  of  contributory  negligence  per  se;  Boston  Excelsior 
Co.  v.  Bangor  and  Aroostook  Ry.  Co.  93  Me.  52,  47  L.R.A.  82,  44  Atl.  13S,  holding 
that  the  plaintiff  was  not  guilty  of  contributory  negligence  in  piling  wood  along- 
side of  the  railroad  right  of  way;  Briant  v.  Detroit,  L.  &  N.  R.  Co.  104  Mich.  307, 
62  N.  W.  365,  holding  that  in  leaving  shavings  and  sawdust  around  a  saw  mill  tlio 
plaintiff  was  not  guilty  of  such  contributory  negligence  as  would  excuse  the 
defendants;  Philadelphia  &  R.  R.  Co.  v.  Hendrickson,  80  Pa.  182,  21  Am.  Rep. 
97,  2  W.  N.  C.  449,  33  Phila.  Leg.  Int.  1S4,  holding  that  the  erection  of  a  barn 
near  the  right  of  way,  with  a  combustible  roof  was  not  contributory  negligence 
per  se;  Mathews  v.  St.  Louis  &  S.  F.  R.  Co.  121  Mo.  298,  25  L.R.A.  161,  24  S.  W. 
591;  Jafrrey  v.  Toronto,  G.  &  B.  R.  Co.  23  U.  C.  C.  P.  553,— holding  that  it  was  not 
contributory  negligence  per  se  for  the  plaintiff  to  allow  combustible  materials 
together  on  his  land  along  the  right  of  way;  McLaren  v.  Canada  C.  R.  Co.  32  U. 
C.  C.  P.  324,  holding  that  the  piling  of  lumber  on  the  plaintiff's  land  adjoining 
the  right  of  way  was  not  necessarily  contributory  negligence. 
Inference  of  negligence  from  escape  of  fire. 

Cited  in  Gagg  v.  Vetter,  41  Ind.  228,  13  Am.  Rep.  322;  Woodson  v.  Milwaukee 
&  St.  P.  R.  Co.  21  Minn.  60, — on  the  escape  of  fire  from  a  locomotive  as  prima 
facie  evidence  of  negligence;  Fitch  v.  Pacific  R.  Co.  45  Mo.  322,  holding  that 
there  is  a  presumption  of  negligence  if  coals  are  scattered  along  a  railroad  track 
from  a  locomotive;  Kelsey  v.  Chicago  &  N.  W.  R.  Co.  1  S.  D.  SO,  45  N.  W.  204, 
holding  that  if  fire  is  shown  to  have  been  started  by  spark  from  locomotive  of 
passing  train,  presumption  of  negligence  upon  company's  part  is  raised  casting 
burden  upon  it  of  showing  that  engine  was  properly  equipped  and  managed. 
Effect  of  legislative  authority  to  do  an  act. 

Cited  in  Sawyer  v.  Davis,  136  Mass.  239,  49  Am.  Rep.  27,  holding  that  legis 
lative  sanction  made  lawful  the  ringing  of  a  bell  which  would  otherwise  have 
been  a  nuisance;  Gould  v.  Winona  Gas  Co.  100  Minn.  258,  10  L.R.A.(N.S.)  889, 
111  N.  W.  254,  holding  that  liability  of  gas  company  in  damages  to  owner  of 
trees  on  boulevard  in  front  of  premises  caused  by  escape  of  gas,  is  determined  by 
principles  of  negligence  applicable  to  authorized  public  works;  Sayre  v.  Newark, 
60  N.  J.  Eq.  361,  48  L.R.A.  722,  S3  Am.  St.  Rep.  629,  45  Atl.  9S5,  holding  that 
the  legislature  could  authorize  a  city  to  use  tidal  waters  for  outlets  to  sewers: 
Brown  v.  Bathurst  Electric  &  Water  Power  Co.  3  N.  B.  Eq.  543,  on  legislative 
authority  to  do  an  act  as  a  defense  to  an  action  for  doing  such  act  except  in 
ease  of  negligence;  Dungey  v.  London,  38  L.  J.  C.  P.  N.  S.  298,  20  L.  T.  N.  S. 
921,  17  Week.  Rep.  1106,  holding  that  where  an  act  was  done  in  pursuance  of 


1  E.  R.  C.  290]        NOTES  ON  ENGLISH  RULING  CASES.  58 

statutory  authority,  unless  done  negligently,  did  not  render  the  doer  liable; 
Madras  R.  Co.  v.  Carvetinagarmn,  L.  R.  1  Ind.  App.  384,  30  L.  T.  N.  S.  770,  32 
Week.  Rep.  865,  holding  that  where  an  act  is  authorized  by  statute,  which  act  if 
done  without  such  authority  would  have  rendered  the  doer  liable  even  in  the 
absence  of  negligence,  the  party  doing  the  act  is  not  liable  unless  negligent. 

Cited  in  notes  in  1  L.R.A.  (N.S.)  60,  on  effect  of  legislative  authority  upon  lia- 
bility for  private  nuisance;  1  Eng.  Rul.  Cas.  662,  on  nonliability  for  damage 
necessarily  arising  from  exercise  of  powers  granted  by  statute;  7  E.  R.  C.  3S0,  on 
authorizing  public  corporation  to  exercise  its  powers  so  as  to  inflict  injury  on 
third  persons;  36  E.  R.  C.  420,  on  what  are  regarded  as  "sewers"  within  public 
health  act;  16  Eng.  Rul.  Cas.  583;  19  E.  R.  C.  273,— on  local  or  statutory  au- 
thority as  justification  for  nuisance. 

Cited  in  Joyce  Nuis.  108,  on  acts  authorized  by  legislature  as  nuisances. 

Distinguished  in  Hill  v.  Metropolitan  Asylum  Dist.  L.  R.  4  Q.  B.  Div.  433,  40 
L.  T.  N.  S.  491,  holding  that  where  the  defendants  operated  a  hospital  where 
infectious  diseases  were  treated,  in  such  a  manner  as  to  make  it  a  nuisance,  they 
were  liable  though  the  duty  was  cast  upon  them  by  statute;  Southwark  &  V. 
Water  Co.  v.  Wandsworth  Dist.  Bd.  of  Works  [189S]  2  Ch.  603,  62  J.  P.  756,  79 
L.  T.  N.  S.  132,  14  Times  L.  R.  576,  47  Week.  Rep.  107,  holding  that  in  the  exer- 
cise of  statutory  conferred  rights  the  party  must  act  so  as  not  to  unreasonably 
infringe  upon  the  rights  of  others;  Jordeson  v.  Sutton,  S.  &  D.  Gas.  Co.   [1898] 

2  Ch.  614,  67  L.  J.  Ch.  N.  S.  666,  14  Times  L.  R.  567,  holding  that  a  gas  com- 
pany empowered  by  statute  to  purchase  defined  land  by  agreement  and  erect  gas- 
works thereon  were  not  empowered  to  do  so  to  the  injury  of  neighboring  property. 

Disapproved  in  Cowper  Essex  v.  Acton  Local  Board,  L.  R.  14  App.  Cas.  153, 
58  L.  J.  Q.  B.  N.  S.  594,  61  L.  T.  N.  S.  1,  38  Week.  Rep.  209,  53  J.  P.  756  (af- 
firming L.  R.  14  Q.  B.  Div.  753,  L.  R.  14  App.  Cas.  153,  54  L.  J.  Q.  B.  N.  S.  459, 
52  L.  T.  N.  S.  926,  33  Week.  Rep.  214),  on  the  effect  of  statutory  authority  to 
commit  that  which  would  otherwise  have  infringed  personal  rights  of  others. 
—  Railroads  and  other  public  conveyors. 

Cited  in  Gould  v.  Winona  Gas  Co.  100  Minn.  258,  10  L.R.A. (N.S..)  889,  111  N. 
W.  254,  holding  that  a  gas  company  authorized  to  maintain  gas  mains  along  a 
street  was  not  liable  for  injuries  to  trees  by  escape  of  the  gas,  where  the  com- 
pany was  not  negligent;  Cogswell  v.  New  York,  N.  H.  &  H.  R.  Co.  103  N.  Y.  10, 
57  Am.  Rep.  701,  8  N.  E.  537,  on  the  right  of  the  legislature  to  authorize  the 
maintenance  of  structures  which  under  other  circumstances  being  unauthorized 
would  constitute  nuisances;  Strawbridge  v.  Philadelphia,  2  Pennyp.  419,  on  the 
liability  of  a  city  for  an  explosion  of  a  gas  main,  where  it  was  authorized  by  the 
legislature  to  maintain  it;  Fisher  v.  Seaboard  Air  Line  R.  Co.  102  Va.  363,  46 
S.  E.  3S1,  1  Ann.  Cas.  622,  holding  that  where  the  legislature  authorized  the 
operation  of  a  railway,  the  company  was  not  liable  for  injuries  caused  to  adjoin- 
ing property  by  noise  and  jarring  of  the  ground  in  the  absence  of  negligence; 
Central  Trust  Co.  v.  Wabash,  St.  L.  &  P.  R.  Co.  57  Fed.  441,  holding  that  a  rail- 
road company  acting  under  legislative  authority  to  do  an  act  was  not  liable  for 
flooding  of  land,  if  it  were  not  negligent  in  building  its  roadbed;  McMillan  v. 
Southwest  Boom  Co.  17  N.  B.  715,  holding  that  where  the  legislature  authorized 
the  erection  of  a  boom  that  the  company  was  not  liable  except  in  case  of  negli- 
gence for  its  breaking  for  obstruction  of  navigation;  Dever  v.  South  Bay  Boom 
Co.  14  N.  B.  109,  holding  same  where  lumber  drifted  ashore  within  the  boom 
limits,  as  to  the  injury  to  the  adjoining  land;  Lea  Conservancy  Board  v.  Hert- 
ford Corp.  48  J.  P.  628,  1  Cab.  &  E.  299,  holding  that  a  city  was  not  liable  for 


59  NOTES  ON  ENGLISH  RULING  CASES.        [1   E.  R.  C.  308 

the  discharge  of  sewage  into  a  river  at  the  place  and  in  the  manner  authorized 
by  statute:  Diion  v.  Metropolitan  Bd.  of  Works,  L.  R.  7  Q.  B.  Div.  418,  50  L.  J. 
Q.  B.  X.  S.  772,  45  L.  T.  X.  S.  312,  30  Week.  Rep.  S3,  46  J.  P.  4,  holding  that 
where  a  city  constructed  a  sewer  under  the  authority  of  law  and  the  plaintiff's 
dock  was  injured  because  the  flood  gates  of  the  sewer  were  opened  to  relieve  the 
sewer  in  time  of  a  flood;  Evans  v.  Manchester,  S.  &  L.  R.  Co.  L.  R.  3G  Ch.  Div. 
626,  57  L.  J.  Ch.  N.  S.  153,  57  L.  T.  N.  S.  194,  30  Week.  Rep.  328,  holding  that 
where  a  person  was  authorized  by  law  to  maintain  a  canal  he  was  not  liable  for 
water  leaking  through  into  a  mill  built  on  the  bank  thereof,  unless  he  was  negli- 
gent; Dunn  v.  Birmingham  Canal  Navigation,  L.  R.  S  Q.  B.  42,  42  L.  J.  Q.  B.  N. 
S.  34,  27  L.  T.  N.  S.  6S3,  21  Week.  Eep.  266,  holding  same  where  water  leaked 
through  into  a  mine;  Atty.-Gen.  v.  Metropolitan  R.  Co.  [1894]  1  Q.  B.  384,  9 
Reports,  598,  69  L.  T.  N.  S.  811,  42  Week.  Rep.  3S1,  5S  J.  P.  342,  holding  that 
where  the  injury  is  the  result  of  the  operation  of  the  railroad,  which  was  author- 
ized by  law,  the  person  injured  is  not  entitled  to  compensation,  unless  there  is 
negligence;  Emsley  v.  North  Eastern  R,  Co.  [1896]  1  Ch.  418,  65  L.  J.  Ch.  N.  S. 
385,  74  L.  T.  N.  S.  113,  60  J.  P.  182,  on  the  right  of  a  railroad  to  operate  its 
road  under  statutory  authority  so  as  to  commit  an  unavoidable  nuisance. 

Cited  in  note  in  7  E.  R.  C.  381,  on  authorizing  public  corporation  to  exercise 
its  powers  so  as  to  inflict  injury  on  third  persons. 

Distinguished  in  McKim  v.  Philadelphia,  217  Pa.  243,  19  L.R.A.(N.S.)  500,  66 
Atl.  340,  holding  that  a  city  was  liable  for  the  death  of  a  person  by  reason  of 
an  accident  caused  by  a  street  railway  negligently  placing  a  pole  in  the  center  of 
the  street  under  authority  of  the  city;  Long  Eaton  Recreation  Grounds  Co.  v. 
Midland  R.  Co.  71  L.  J.  K.  B.  N.  S.  74,  S5  L.  .T.  N.  S.  278,  50  Week.  Rep.  120,  17 
Times  L.  R.  775,  holding  that  where  the  railway  company  were  owners  of  land 
subject  to  covenants  and  in  operating  their  railroad  broke  these  covenants  they 
were  liable  though  authorized  by  law  to  operate  the  railroad. 
Enhancement  of  damages  by  inevitable  accident. 

Cited  in  note  in   18   E.  R.   C.  736,  on  enhancement  by  inevitable  accident  of 
damages  from  negligence  as  a  defense. 
Validity  of  statute  making   railroad   liable   for   fires. 

Cited  in  3  Elliott,  Railr.  2d  ed.  505,  on  constitutionality  of  statutes  imposing 
liability  on  railroad  company  for  damage  by  fire. 
What  is  accident. 

Cited  in  4  Elliott,  Railr.  2d  ed.  391,  on  what  is  an  accident  to  a  passenger. 

1  E.  R.  C.  308,  RIVER  WEAR  COMRS.  v.  ADAMSON,  L.  R.  2  App.  Cas.  743,  3 

Asp.  Mar.  L.  Cas.  521,  37  L.  T.  N.  S.  543,  20  Week.  Rep.  217,  47  L.  J.  Q.  B. 

N.  S.  193,  affirming  the  decision  of  the  Court  of  Appeal,  reported  in  L.  11.  1 

Q.  B.  Div.  546,  24  Week.  Rep.  872,  46  L.  J.  Q.  B.  N.  S.  83,  35  L.  T.  N.  S.  118. 

Liability  of  ship  owner  for  injury  caused  by  ship. 

Cited  in  R.  v.  Mississippi  &  D.  S.  S.  Co.  4  Can.  Exch.  298,  on  the  liability  of  a 
ship  owner  under  the  statute  making  him  liable  for  all  injuries  to  docks,  etc.. 
where  the  ship  has  become  a  wreck;  Whiteway  v.  Power,  Newfoundl.  Rep. 
(1S84-96)  625,  holding  that  where  one  ship  is  placed  in  a  position  of  danger  be- 
cause of  an  infringement  of  traffic  regulations  by  another,  the  latter  is  to  blame, 
though  the  former  contributes  to  the  injury  through  mistake  of  judgment;  Stoom- 
vaart  Maatschappy  Nederland  v.  Peninsular  &  O.  Steam  Nav.  Co.  L.  R.  5  App. 
Cas.  876,  23  Eng.  Rul.  Cas.  574,  43  L.  T.  N.  S.  610,  29  Week.  Tvep.  173,  4  Asp. 
Mar.  L.  Cas.  360.  holding  that  the  owners  of  a  ship  were  liable  for  a  nonobserv- 


1  E.  R.  C.  308]        NOTES  ON  ENGLISH  RULING  CASES.  60 

ance  of  the  shipping  regulations  by  the  master  which  act  caused  damage  to  plain- 
tiffs; Eglinton  v.  Norman,  46  L.  J.  Exch.  N.  S.  557,  36  L.  T.  N.  S. '888,  25  Week. 
Rep.  656,  3  Asp.  Mar.  L.  Cas.  471,  on  the  liability  of  the  ship  owner  for  the  cost  of 
removing  the  wreck  from  the  harbor. 

Cited  in  note  in  64  L.R.A.  9S0,  on  liability  for  injuries  caused  by  attempted 
exercise  of  rights  of  navigation. 

Cited  in  1   Farnham,  Waters,  149,  on  liability  for  injury  by  drifting  vessel; 
1  Farnham,  Waters,  150,  on  liability  of  navigator  for  injuries. 

Distinguished  in  Arrow  Shipping  Co.  v.  Tyne  Improv.  Comrs.  [1894]  A.  C.  508, 
63  L.  J.  Prob.  N.  S.  146,  6  Reports,  258,  71  L.  T.  N.  S.  346,  7  Asp.  Mar.  L.  Cas. 
513,  holding  that  where  a  ship  sank  at  the  mouth  of  a  harbor  through  the  neg- 
ligence of  the  owners,  they  were  not  liable  for  the  expense  of  removing  it  where 
they  had  totally  abandoned  it  before  removal. 
Statutory  liability. 

Cited  in  St.  John  &  M.  B.  Co.  v.  Montgomery,  21  N.  B.  441,  holding  that  where 
the  railroad  company  was  bound  to  fence  its  right  of  way,  the  company  is  liable 
for  all  damages  sustained  by  reason  of  such  neglect. 
Construction  of  statutes. 

Cited  in  Montreal  v.  Cantin,  C.  R.  [1906]  A.  C.  308,  on  interpretation  of 
statute,  words  of  which  admit  of  two  interpretations;  Barrett  v.  Winnipeg,  19 
Can.  S.  C.  374  (reversing  7  Manitoba  L.  Rep.  273),  on  the  construction  of  statutes 
according  to  intention  of  the  legislative  body;  La  Compagnie  Pour  L'eclairage  au 
Gaz  v.  La  Compagnie  des  Pouvoirs  Hydrauliques,  25  Can.  S.  C.  168,  on  the  con- 
struction of  private  legislative  enactments;  Sayers  v.  British  Columbia  Electric 
R.  Co.  12  B.  C.  102,  holding  that  a  court  should  place  on  the  words  of  a  statute 
a  meaning  which  the  intention  of  the  legislature  justifies,  though  contrary  to  the 
usual  signification  of  the  words;  Baker  v.  Smart,  12  B.  C.  129,  holding  that  a 
grant  of  power  to  regulate  or  impose  restrictions  does  not  import  a  grant  of 
power  to  prohibit;  Ex  parte  Manchester,  25  N.  B.  552,  holding  that  in  construing 
a  statute  the  words  must  not  be  construed  in  their  strictest  sense  so  as  to  defeat 
the  object  of  the  act  and  lead  to  difficulty;  Montreal  v.  Cantin,  35  Can.  S.  C.  223; 
Ex  parte  Groves,  24  N.  B.  57 ;  McLeod  v.  Sandall,  26  N.  B.  526,— holding  that  in 
construing  statutes  effect  must  be  given  to  every  part;  Leprohon  v.  Ottawa,  2 
Ont.  App.  Rep.  522,  on  the  rules  of  construction  of  statutes;  Re  Applicants  for 
License,  143  N.  C.  1,  10  L.R.A.(N.S.)  2S8,  55  S.  E.  635,  10  Ann.  Cas.  1S7  (dis- 
senting opinion )  ;  Provincial  Ins.  Co.  v.  Worts,  9  Ont.  App.  Rep.  56, — on  the  con- 
struction of  legislative  enactments  according  to  the  intention  of  the  enacting 
body;  Meakin  v.  Samson,  28  U.  C.  C.  P.  355,  on  the  proper  construction  of 
statutes;  Shortell  v.  Sullivan,  21  N.  S.  257,  to  the  point  that  true  meaning  of 
statute  is  to  be  found  not  merely  in  words  of  any  passage,  but  in  comparing  it 
with  every  other  part  of  statute,  and  in  ascertaining  necessity  of  statute  being 
made;  North  British  &  M.  Fire  &  Life  Ins.  Co.  v.  Lambe,  4  Dorion,  Q.  B.  112, 
Montreal  L.  Rep.  1  Q.  B.  122,  holding  that  in  construing  a  statute  the  intention 
of  the  legislative  body  should  govern ;  Eastman  Photographic  Materials  Co.  v. 
Comptroller-General  [1S98]  A.  C.  571,  25  Eng.  Rul.  Cas.  240,  67  L.  J.  Ch.  N. 
S.  628,  15  Rep.  Pat.  Cas.  476,  79  L.  T.  N.  S.  195,  14  Times  L.  R.  527,  47  Week. 
Rep.  152,  holding  that  reference  may  be  had  to  the  former  statute  repealed  and  to 
the  evils  aimed  at  in  order  to  ascertain  the  intention  of  the  legislature,  in  con- 
struing a  statute;  Badische  Anilin  und  Soda  Fabrik  v.  Hickson  [1906]  A.  C.  419, 
5  Ann.  Cas.  669,  on  the  construction  of  statutes  to  effect  the  intention  of  the 
legislature. 


61  NOTES  ON  ENGLISH  RULING  CASES.        [1  E.  R.  C.  338 

Cited  in  2  Sutherland,  Stat.  Const.  2d  ed.  911,  on  consideration  given  to  effects 
and  consequences  in  construing  statute. 
—  In  derogation  or  addition  to  common  law. 

Cited  in  Western  Counties  R.  Co.  v.  Windsor  &  A.  R.  Co.  L.  R.  7  App.  Cas.  178, 
51  L.  J.  P.  C.  N.  S.  43,  46  L.  T.  N.  S.  351,  holding  that  a  common  law  right  will 
not  be  taken  away  by  a  statute  unless  it  appear  by  plain  words  or  by  plain  im- 
plication that  it  was  the  intention  of  the  legislature  to  do  so. 
Strict  meaning  of  words   as  affected   by   intention   of  party   using  them. 

Cited  in  Wilson  v.  Beatty,  2  Ont.  App.  Rep.  417,  holding  that  the  strict  mean- 
ing of  words  used  should  yield  to  the  intention  of  the  party  where  the  latter  is 
clear  and  in  contradiction  of  the  former;  Grice  v.  Bartram,  3  D.  L.  R.  8C8,  hold- 
ing that  in  construing  contract  it  is  proper  to  consider  circumstances  and  objtct 
which  parties  had  in  view  in  order  to  arrive  at  intention  of  parties. 
Act  of  God  as  exempting  from  liability. 

Cited  in  McMillan  v.  Southwest  Boom  Co.  17  N.  B.  715,  holding  that  boom  com- 
pany was  not  liable  for  obstruction  to  navigation  caused  by  vis  major,  and  not 
through  its  own  negligence;  Dixon  v.  Dixon,  22  Pa.  Super.  Ct.  340,  holding  that 
where  a  contract  is  entered  into,  nonperformance  thereof  is  excused  by  an  act  of 
God,  which  human  foresight  could  not  have  prevented. 

Cited  in  Benjamin,  Sales,  5th  ed.  571,  on  effect  of  impossibility  of  performance 
of  thing  possible  in  itself. 
Respondeat   superior. 

Cited  in  notes  in  37  L.R.A.  55,  on  whose  servants  are  crew  of  chartered  vessel; 
24  E.  R.  C.  213,  on  prima  facie  evidence  of  ownership  of  ship  from  register  to 
show  employer  of  persons  in  charge  of  ship. 

1  E.  R.  C.  338,  JACOBS  v.  CREDIT  LYONNAIS,  L.  R.  12  Q.  B.  Div.  589,  50  L. 

T.  N.  S.  194,  32  Week.  Rep.  761,  53  L.  J.  Q.  B.  N.  S.  156. 
Impossibility  of  performance  as  excusing  completion  of  a  contract. 

Cited  in  Tweedie  Trading  Co.  v.  James  P.  McDonald  Co.  114  Fed.  985,  holding 
that  contract  to  transport  laborers  valid  when  made  is  not  terminated  by  reason 
of  enactment  of  foreign  government  prohibiting  future  embarkation  of  laborers, 
nor. is  such  enactment  defense  in  action  for  breach  of  contract;  Middlesex  Water 
Co.  v.  Knappmann  Whiting  Co.  64  N.  J.  L.  240,  49  L.R.A.  572,  81  Am.  St.  Rep. 
467,  45  Atl.  692,  holding  that  a  person  was  not  excused  from  performing  a  con- 
tract because  prevented  by  some  unforeseen  accident  which  is  not  provided  against 
by  the  agreement;  Atty.-Gen.  v.  Canadian  P.  R.  Co.  1  B.  C.  pt.  2,  360,  holding  that 
demurrer  to  defense  in  action  on  bond  to  secure  performance  of  agreement,  "that 
nonperformance  cannot  be  excused  by  setting  up  injunction,"  was  bad. 

Cited  in  notes  in  6  E.  R.  C.  612,  on  impossibility  as  excuse  for  nonperform- 
ance of  contract;  15  E.  R.  C.  808,  on  statutory  requirements  as  excuse  for  land- 
lord's breach  of  covenant. 

Cited  in  Benjamin,  Sales,  5th  ed.  573,  on  impossibility  of  performance  of  Eng- 
lish contract  intended  to  be  performed  abroad  as  an  excuse  by  foreign  law. 
Conflict  of  laws  applying  to  the  enforcement  of  a  contract. 

Cited  in  Liverpool  &  G.  W.  Steam  Co.  v.  Phenix  Ins.  Co.  (The  Montana),  129 
U.  S.  397,  32  L.  ed.  788,  9  Sup.  Ct.  Rep.  469,  holding  that  contract  of  affreight- 
ment made  in  one  country  between  residents  thereof  and  performance  of  which 
begins  there  must  be"  governed  by  law  of  that  country,  unless  contrary  intention 
is  clearly  expressed;  The  Brantford  City,  29  Fed.  373,  holding  that  contract  made 


1  E.  E.  C.  338]        NOTES  ON  ENGLISH  RULING  CASES.  62 

in  Boston  to  ship  by  British  steamer  to  England  which  releases  carrier  from  neg- 
ligence must  be  construed  in  accordance  with  law  of  Massachusetts;  Millard  v. 
Brayton,  377  Mass.  533,  52  L.R.A.  117,  83  Am.  St.  Rep.  294,  59  N.  E.  436,  hold- 
ing that  rights  of  parties  under  insurance  policy  applied  for  in  this  state  and 
issued  in  New  York  but  delivered  to  insured  here  and  first  premium  paid  is  gov- 
erned by  laws  of  this  state;  Cannaday  v.  Atlantic  Coast  Line  B.  Co.  143  N.  C. 
439,  8  L.R.A.  (N.S.)  939,  118  Am.  St.  Rep.  S21,  55  S.  E.  S36,  holding  that  matters 
bearing  upon  execution,  interpretation  and  validity  of  contract  are  determined  by 
law  of  place  where  it  is  made;  Grand  v.  Livingston,  4  App.  Div.  589,  38  N.  Y. 
Supp.  490,  holding  that  contract  made  with  express  company  in  Massachusetts 
to  ship  horses  to  New  York  which  released  company  from  liability  for  negligence 
and  which  provision  was  void  under  Massachusetts  law  must  be  construed  accord- 
ing to  law  of  Massachusetts;  Mayer  v.  Roche,  77  N.  J.  L.  681,  26  L.R.A.(N.S.) 
763,  75  Atl.  235,  holding  that  proper  law  of  contract  in  law  by  which  parties 
thereto  intended,  or  may  fairly  be  presumed  to  have  intended,  contract  to  be 
governed;  Robin  v.  Hart,  23  N.  S.  316,  holding  that  rules  of  local  law  must 
govern  in  respect  to  all  property  and  rights  within  Dominion ;  Re  Central  Bank, 
21  Ont.  Rep.  515,  holding  that  agreement  to  advance  money  having  been  made 
and  parties  to  it  being  domiciled  in  province,  rights  of  parties  to  it  must  be  de- 
termined by  law  of  his  province  and  not  those  of  Quebec;  Bradburn  v.  Edin- 
burgh Life  Assur.  Co.  5  Ont.  L.  Rep.  657,  holding  that  law  of  Canada  must  govern 
in  relation  to  contract  where  loan  of  money  on  mortgage  on  land  here  was  made 
in  Canada;  National  Trust  Co.  v.  Hughes,  14  Manitoba  L.  Rep.  41,  holding  that 
contract  of  life  insurance  made  in  Ontario  with  company  having  land  office  there 
and  providing  for  payment  of  insurance  money  there,  is  governed  by  Ontario 
law,  but  dealing  with  benefits  of  policy  made  by  insured  in  Manitoba  will  be 
governed  by  law  of  Manitoba;  Ex  parte  Dever,  L.  R.  18  Q.  B.  Div.  660,  56  L.  J.' 
Q.  B.  N.  S.  552,  on  the  law  applicable  to  enforcement  of  a  contract  where  made 
and  to  be  performed  in  different  countries;  Re  Missouri  S.  S.  Co.  L.  R.  42  Ch. 
Div.  321,  58  L.  J.  Ch.  N.  S.  721,  61  L.  T.  N.  S.  316,  37  Week.  Rep.  696,  6  Asp.  Mar. 
L.  Cas.  423,  holding  that  when  a  contract  is  made  in  one  country  to  be  wholly  or 
partially  performed  in  another,  prima  facie,  the  contract  is  to  be  construed  and 
enforced  according  to  the  place  where  the  contract  was  entered  into;  South 
African  Breweries  v.  King  [1899]  2  Ch.  173,  68  L.  J.  Ch.  N.  S.  530.  81  L.  T.  N 
S.  76,  47  Week.  Rep.  681,  holding  that  in  determining  what  law  should  govern 
a  contract,  other  things  being  equal,  preference  should  be  given  to  the  place 
where  the  transaction  has  the  most  connection. 

Cited  in  notes  in  63  L.R.A.  531,  on  conflict  of  laws  as  to  carrier's  contracts;  5 
E.  R.  C.  886,  890,  on  presumption  that  parties  to  contract  intended  to  adopt  law 
of  place  where  contract  was  made. 

Cited  in  1  Beach.  Contr.  697,  on  law  of  place  of  contract;  1  Beach.  Contr.  711, 
on  law  of  place  of  performance  as  governing  contract. 

1  E.  R.  C.  351,  ROTHES  v.  KIRKCALDY  WATERWORKS  COMRS.  L.  R.  7  App. 
Cas.   694,  9  R.    (H.  L.)    10S,   19   S.   L.   R.  907,  reversing  the  decision  of  the 
Court  of  Sessions,  reported  in  6  Sc.  Sess.  Cas.  4th  Series,  974. 
Statutory  construction. 

Cited  in  Sanders  v.  State,  86  Ga.  717,  12  S.  E.  105S,  holding  that  where  a 
statute  makes  a  specific  enumeration  of  terms  and  ends  with  a  general  term,  it 
is  limited  to  things  of  the  same  kind;  Barrett  v.  Winnipeg,  19  Can.  S.  C.  374  (re- 
versing 7  Manitoba  L.  Rep.  273),  on  statutes  capable  of  two  constructions  not. 


63  NOTES  U.\   ENGLISH  RULING   I    USES.        LI  E.  R.  C.  368 

equally  reasonable;   Toronto  v.   Bell  Telcph.  Co.  G  Out.  L.   Rep.  335    (dissenting 
opinion),   on   the  construction    of   statutes   as   controlled    by    provisos    in    amend 
ments;  Re  O'Meara,  11  Out.  Rep.  603,  on  the  construction  of  the  language  of  a 
statute  when  there  is  a  difficulty  in  interpretation. 
Private  statutes  as  contract  between  the  parties  acting  under  tliein. 

Cited  in  Johnston  v.  Consumers'  Gas  Co.  27  Out.  Rep.  !),  holding  that  where  a 
statute  requiring  a  corporation  to  invest  its  surplus  in  certain  bonds,  as  a  con- 
dition to  consent  to  increase  its  capital,  such  a  condition  was  binding  as  a  con- 
tract though  imposed  by  the  legislature;  Davis  v.  Taff  Vale  R.  Co.  [1895]  A.  C. 
542,  64  L.  J.  Q.  B.  N.  S.  488,  11  Reports,  189,  72  L.  T.  N.  S.  632,  44  Week.  Rep. 
172,  holding  that  a  clause  in  an  act  relating  to  two  railroads,  whereby  the  rates 
for  certain  traffic  were  limited,  was  in  effect  a  contract;  Crosfield  v.  Manchester 
Ship  Canal  Co.  [1904]  2  Ch.  123,  on  private  statutes  as  contracts  between  the 
parties. 

Distinguished  in  Re  Manchester  &  M.  R.  Co.  [1897]  1  Ch.  276,  66  L.  J.  Ch. 
N.  S.  139,  75  L.  T.  N.  S.  416,  45  Week.  Rep.  331,  holding  that  a  statute  requiring 
two  or  more  railroad  companies  to  repay  money  expended  by  one  of  them  in 
maintaining  a  joint  station,  was  not  a  contract  under  a  statute  authorizing  an 
execution  to  be  issued  against  rolling  stock  in  an  action  on  contract. 
Liability  for  injuries  from  waterworks. 

Cited  in  note  in  61  L.R.A.  60,  on  liability  of  municipality  for  injuries  from 
waterworks. 

1  E.  R.  C.  368,  PINNEL'S  CASE,  5  Coke,  117a. 
Accord  and  satisfaction. 

Cited  in  Thomas  v.  Hendrick,  11  Luzerne  Leg.  Reg.  191,  holding  that  receipt 
by  creditor  of  property  of  unascertained  value  may  be  sufficient  consideration  to 
discharge  debt. 

Cited  in  note  in  6  E.  R.  C.  574,  on  discharge  of  contract  by  accord  and  satis- 
faction. 

Cited  in  Benjamin,  Sales,  5th  ed.  768,  on  payment  at  a  different  place  or  com- 
promising of  action  as  a  satisfaction  of  debt. 
—  By  acceptance  of  less  than  cine. 

Referred  to  as  leading  case  in  Reeside  v.  United  States,  2  Ct.  CI.  1,  holding 
release  not  under  seal  and  without  new  consideration  was  not  in  accord  and 
satisfaction  of  government  contract  claim. 

Cited  in  Haas  Bros.  v.  Hamburg-Bremen  F.  Ins.  Co.  104  C.  C.  A.  354,  181  Fed. 
916,  holding  that  parol  evidence  was  admissible  to  show  that  "receipt  in  full" 
for  loss  under  insurance  policy  was  given  in  pursuance  of  agreement  that  if  other 
creditors  received  greater  percentage  plaintiff  would  be  entitled  to  same  per- 
centage; Aiken  v.  Price,  Dud.  L.  50,  holding  that'  assignment  by  debtor  for  credit- 
ors, with  parol  understanding  that  creditor  accepting  part  should  release  re- 
mainder of  his  claim,  is  binding  on  creditor  accepting  dividend;  Davis  v.  Barwick. 
SS  S.  C.  355,  70  S.  E.  1007,  holding  void,  agreement  to  accept  less  than  amount 
due  as  satisfaction;  Martin  v.  White,  40  111.  App.  2S1,  holding  that  to  amount  to 
accord  and  satisfaction,  where  sum  less  than  amount  due  is  accepted,  creditor 
must  receive  some  actual  benefit  that  he  would  not  otherwise  have  had;  Moly- 
neaux  v.  Collier,  13  Ga.  406,  holding  security  of  equal  degree  for  a  smaller  sum, 
cannot  be  pleaded  in  an  action  for  the  larger  sum;  Allison  v.  Abendroth,  108  N. 
Y.  470,  3  5  N.  E.  COG,  to  the  point  that  promise  by  debtor  to  pay  part  of  admitted 
debt  followed  by  actual  payment  of  such  part  is  not  good  accord  and  satisfac- 


1  E.  R.  C.  30SJ        NOTES  ON  ENGLISH  RULING  CASES.  64 

tion;  Hayes  v.  Massachusetts  Mut.  L.  Ins.  Co.  125  111.  626,  1  L.R.A.  303,  18  N., 
E.  322,  holding  acceptance  of  one  half  the  sum  of  money  due  on  an  insurance 
policy  in  full  satisfaction,  operates  as  a  discharge  pro  tanto  only;  Howe  v. 
Mackay,  5  Pick.  44,  holding  a  payment  of  a  money  judgment  in  land  operates  as 
a  satisfaction  only  to  the  extent  of  the  value  of  the  land;  Clough  v.  Murray,  3 
Robt.  7,  on  what  constitutes  an  accord  and  satisfaction  so  as  to  bar  an  action  for 
the  debt;  Savage  v.  Everman,  70  Pa.  315,  10  Am.  Rep.  676,  29  Phila.  Leg.  Int. 
45,  holding  that  agreement  to  give  less  sum  for  greater,  if  time  of  payment  be 
anticipated,  is  binding;  Hope  v.  Johnston,  11  Rich.  L.  135,  holding  payment  of 
one-half  amount  of  note  by  a  joint  maker  after  it  became  due,  and  giving  of  re- 
ceipt, not  under  seal,  releasing  the  one  making  payment,  is  no  defense  to  action 
for  balance;  Wheeler  v.  Wheeler,  11  Vt.  60,  Eve  v.  Mosely,  2  Strobh.  L.  203, — 
holding  partial  payment  of  a  debt,  liquidated  and  payable,  will  not  operate  as  a 
discharge  of  debt  though  accepted  as  such;  Martin  v.  United  States,  5  Ct.  CI. 
215  (dissenting  opinion),  on  inconclusiveness  of  payment  of  part  in  full  of  debt; 
Foakes  v.  Beer,  L.  R.  9  App.  Cas.  605,  54  L.  J.  Q.  B.  N.  S.  130,  1  Eng.  Rul.  Cas.  370, 
holding  that  an  agreement  whereby  a  judgment  creditor  agreed  to  refrain  from 
enforcing  his  judgment  if  the  debtor  would  pay  part  in  cash  and  the  rest  in  in- 
stalments was  not  a  valid  agreement  to  bind  creditor  from  enforcing  interest; 
Bidder  v.  Bridges,  L.  R.  37  Ch.  Div.  406,  57  L.  J.  Ch.  N.  S.  300,  1  Eng.  Rul.  Cas. 
393,  holding  that  where  the  solicitor  accepted  a  cheque  in  full  for  costs  from  the 
defendant,  it  was  an  accord  and  satisfaction  of  the  costs,  though  it  did  not  cover 
the  interest  thereon  to  which  the  plaintiff  was  entitled. 

Cited  in  notes  in  11  L.R.A.  (N.S.)  1020,  on  part  payment  as  consideration  for 
discharge  of  liquidated  and  undisputed  debt;  20  L.R.A.  7S5,  793;  1  E.  R.  C.  391  — 
on  part  payment  as  accord  and  satisfaction. 

Cited  in  1  Beach,  Contr.  189,  519,  on  accord  and  satisfaction  by  payment  of 
less  than  amount  due;  Benjamin,  Sales,  5th  ed.  767,  769,  on  acceptance  of  smaller 
amount  than  due  as  satisfaction  of  debt;  Hollingsworth,  Contr.  126,  on  nonin- 
quiry  into  adequacy  of  consideration  for  contract  if  it  is  something  of  value  in 
contemplation  of  law. 

Distinguished  in  Lincoln  Sav.  Bank  &  S.  D.  Co.  v.  Allen,  27  C.  C.  A.  87,  49  U. 
S.  App.  498,  82  Fed.  14S,  holding  an  agreement  to  accept  part  payment  and  sur- 
render of  part  of  collateral  where  debt  is  secured  by  notes  as  collateral  is  enforce- 
able; Silvers  v.  Reynolds,  17  N.  J.  L.  275,  holding  where  the  evidence  of  indebted- 
ness is  wilfully  destroyed  for  a  lesser  sum  than  its  face  this  is  in  effect  a 
technical   release  of  difference. 

Limited  in  Ex  parte  Zeigler,  83  S.  C.  78,  21  L.R.A. (N.S.)  1005,  64  S.  E.  513, 
holding  the  payment  of  a  sum  less  than  judgment  by  a  discharged  obligor  at  re- 
quest of  a  co-obligor  still  bound  for  the  debt  satisfies  the  debt,  where  creditor 
accepted  payment  as  satisfaction. 

Criticised  in  Clayton  v.  Clark,  74  Miss.  499,  37  L.R.A.  771,  60  Am.  St.  Rep. 
521,  21  So.  565,  holding  the  acceptance  of  a  sum  less  than  called  for  by  note  and 
surrender  of  note  with  agreement  that  it  is  extinguished  by  the  payment,  ex- 
tinguishes the  note;  Dreyfus  v.  Roberts,  75  Ark.  354,  69  L.R.A.  823,  112  Am.  St. 
Rep.  67,  87  S.  W.  641,  5  Ann.  Cas.  521,  holding  an  acceptance,  evidenced  by  writ- 
ten receipt,  of  a  lesser  sum  in  full  satisfaction  of  a  greater  one  is  a  valid  release; 
Jaffray  v.  Davis,  124  N.  Y.  164,  11  L.R.A.  710,  26  N.  E.  351,  4  Silv.  Ct.  App. 
315  (reversing  48  Hun,  500,  1  N.  Y.  Supp.  814),  holding  the  giving  of  note  for 
one  half  an  open  book  account,  secured  by  chattel  mortgage,  will  discharge  the 
debt  where  given  and  accepted  in  full  satisfaction  of  the  debt;  Seymour  v.  Good- 


05  NOTES  ON  ENGLISH  RULING  CASKS.       |1   E.  R.  C.  3GS 

rich,  80  Va.  303,  holding  payment  of  part  of  firm  debt  by  two  of  firm's  members 
upon  agreement  that  it  release  them  from  further  liability  is  a  satisfaction ; 
Shelton  v.  Jackson,  20  Tex.  Civ.  App.  443,  49  S.  W.  415,  holding  payment  of  a 
lesser  sum  where  debtors  were  insolvent  was  sufficient  consideration  to  support 
release  of  balance  on  bond. 

Disapproved  in  Frey  v.  Kubbell,  74  N.  II.  358,  17  L.R.A.(N.S.)  1197,  OS  At  I. 
325,  holding  acceptance  of  a  less  sum  in  full  satisfaction  of  a  debt  is  a  defense  to 
an  action  for  the  balance;  Harper  v.  Graham,  20  Ohio,  100,  holding  payment  of  a 
portion  of  judgment  and  attorney's  fees  upon  agreement  that  judgment  shall  be 
extinguished  and  a  receipt  given  in  full  discharges  such  judgment  debt. 

—  Where  security  from  third  party  is  accepted. 

Cited  in  Pulliam  v.  Taylor,  50  Miss.  251,  holding  the  acceptance  of  debtor's 
note  and  security,  or  note  of  third  persons,  for  less  than  the  whole  debt  will 
afford  consideration  to  support  a  compounding  of  the  debt;  Brooks  v.  White,  2 
Met.  283,  37  Am.  Dec.  95,  holding  acceptance  of  note  of  third  party  for  a  sum  less 
than  amount  of  debt  will  be  a  bar  to  suit  for  recovery  of  full  amount;  Lee  v. 
Oppenheimer,  32  Me.  253,  holding  the  acceptance  of  the  note  of  a  third  person 
in  accordance  with  agreement  to  release  debtor  will  support  such  discharge  though 
the  note  is  for  a  less  amount  than  the  debt;  Colburn  v.  Gould,  1  N.  H.  279,  hold- 
ing that  if  creditor  agree  with  insolvent  debtor,  that  if  he  will  procure  security  of 
friend  for  certain  part  of  debt,  he  will  release  residue,  and  debtor  performs  agree- 
ment, it  constitutes  valid  contract. 

Cited  in  1  Beach,  Contr.  538,  on  necessity  for  new  consideration  in  settlement 
by  third  person. 

—  Where  release  is  under  seal. 

Cited  in  Union  Bank  v.  Call,  5  Fla.  409,  holding  where  the  release  is  under 
seal  it  is  not  necessary  that  there  be  a  full  consideration. 

—  Where  claim   is  unliquidated. 

Cited  in  Bateman  v.  Daniels,  5  Blackf.  71,  holding  where  damages  are  un- 
liquidated, the  payment  of  a  less  sum  than  that  demanded  may  be  pleaded  as  a 
satisfaction  of  the  whole  demand;  Lestienne  v.  Ernst,  5  App.  Div.  373,  39  N.  V. 
Supp.  199;  Bingham  v.  Browning,  97  111.  App.  442, — holding  where  there  is  an  un- 
liquidated demand  and  the  one  making  tender  and  payment  expressly  stipulates 
that  the  sum  tendered  is  to  be  a  full  satisfaction,  acceptance  constituted  a  full 
discharge;  Treat  v.  Price,  47  Neb.  875,  66  N.  W.  834,  holding  in  ease  of  a  disputed 
claim  a  tender  and  acceptance  of  a  lesser  amount  will  discharge  the  claim: 
Mathis  v.  Brown,  49  N.  C.  (4  Jones,  L.)  508,  holding  where  amount  is  unascer- 
tained and  in  dispute,  payment  of  a  less  sum  than  claimed,  if  received  in  dis- 
charge, will  support  plea  of  accord  and  satisfaction;  Chicago,  R.  I.  &  P.  R.  Co. 
v.  Mills,  18  Colo.  App.  8,  69  Pac.  317,  holding  the  acceptance  by  an  employee  of 
$50  each  month  and  receipt  for  same  is  a  full  satisfaction  where  employee  claimed 
$55  a  month  and  the  employer  claimed  such  sum  was  contingent  upon  a  condition 
never  performed. 

Cited  in  note  in  26  L.  ed.  U.  S.  1187,  on  compromise  of  disputed  claim. 

Distinguished  in  Comstock  v.  United  States,  9  Ct.  CI.  141,  holding  acceptance 
from  government  of  sum  tendered  in  full  for  impressed  goods  was  a  discharge. 

Limited  in  Riggs.v.  Home  Mut.  F.  Protective  Asso.  61  S.  C.  448,  39  S.  E.  614, 
holding  the  rule  that  a  leaser  sum  cannot  satisfy  a  greater  one  has  no  application 
to  unliquidated  claims. 

—  Where  other  thing  or  property  is  accepted  in   satisfaction. 

Cited  in  Singleton  v.  Thomas,  73  Ala.  205,  on  sufficiency  of  goods  as  considera- 
Notes  on   E.   R.   C— 5. 


1  E.  R.  C.  3G8]        NOTES  ON  ENGLISH  RULING  CASES.  66 

tion  for  accord  and  satisfaction;  Bush  v.  Abraham,  25  Or.  336,  35  Pac.  1066,  hold- 
ing an  agreement  to  accept  something  in  lieu  of  money  in  satisfaction  of  a  debt, 
when -carried  into  effect,  satisfies  such  debt;  Savage  v.  Everman,  70  Pa.  315,  10 
Am.  Rep.  676,  20  Phila.  Leg.  Int.  45,  holding  a  delivery  and  acceptance  of  land  in 
satisfaction  of  a  debt  will  discharge  the  debt;  Missouri-American  Electric  Co.  v. 
Hamilton-Brown  Shoe  Co.  91  C.  C.  A.  251,  165  Fed.  283;  Very  v.  Levy,  13  How. 
345,  14  L.  ed.  173, — holding  a  delivery  of  specific  articles  a  good  satisfaction  of  a 
money  debt;  Watkinson  v.  Inglesby,  5  Johns.  3S6,  holding  delivery  and  acceptance 
of  stock  in  trade  and  assignment  of  outstanding  debts  where  accepted  in  full 
satisfaction  of  a  debt  extinguishes  it;  State  Bank  v.  Chetwood,  8  N.  J.  L.  1,  hold- 
ing the  acceptance  of  other  things  for  which  party  was  not  bound  on  a  bond  may 
be  considered  a  satisfaction  of  bond. 
—  Where  onerous  terms  are  added  to  payment  or  prepayment  is  made. 

Cited  in  Pope  v.  Tunstall,  2  Ark.  209,  holding  plea  of  payment  of  part  on  terms 
more  onerous  to  the  payor  may  be  good  as  accord  and  satisfaction;  Brooks  v. 
White,  2  Met.  283,  37  Am.  Dec.  95;  Singer  Sewing  Mach.  Co.  v.  Lee,  105  Ind.  663, 
66  Atl.  628;  Chicora  Fertilizer  Co.  v.  Dunan,  91  Md.  144,  50  L.R.A.  401,  413  Atl. 
347, — holding  an  agreement  to  give  a  less  sum  for  a  greater,  if  the  time  of  pay- 
ment is  anticipated,  is  binding;  Turner  v.  Bowerman,  29  U.  C.  Q.  B.  187,  holding 
payment  before  due  of  a  smaller  sum  in  satisfaction  of  a  greater  sum  is  a  good 
defense;  Columbia  Bldg.  &  L.  Asso.  v.  Bollinger,  12  Rich.  Eq.  124,  78  Am.  Dec. 
463;  Austin  v.  Dorwin,  21  Vt.  38;  Thurber  v.  Smith,  25  R.  I.  60,  54  Atl.  790,— 
holding  payment  of  money  before  it  is  due  is  a  good  consideration  for  a  contract ; 
Bantz  v.  Basnett,  12  W.  Va.  772,  holding  payment  but  two  days  before  debt  be- 
comes due  will  support  an  acceptance  of  a  part  payment;  Sonnenberg  v.  Riedel, 
16  Minn.  83,  Gil.  72,  holding  payment  of  a  smaller  sum  where  accepted  in  full 
of  a  debt  not  due,  discharges  the  debt;  Bonaffe  v.  Woodberry,  12  Pick.  456,  hold- 
ing a  bottomry  bond  extinguished  by  payment  of  a  less  amount  than  called  for  by 
bond  where  payment  was  made  while  ship  was  on  voyage;  Bowker  v.  Childs,  3 
Allen,  434,  holding  where  four  notes,  three  of  which  were  not  due,  were  given 
up  upon  payment  of  sixty  per  cent  as  one  entire  transaction  there  was  a  good 
satisfaction  in  law;  Tomlin  v.  M'Chord,  6  J.  J.  Marsh.  1,  holding  one  covenant 
may  be  discharged  by  one  more  advantageous  than  the  first;  Adams  v.  Dubuque, 
86  Iowa,  166,  53  N.  W.  105,  holding  where,  in  settlement  of  litigation,  the  city 
agreed  to  pay  costs  for  which  it  was  not  liable  in  addition  to  amount  paid  a 
judgment  creditor  there  was  a  consideration  to  support  compromise;  Smith  v. 
Brown,  10  N.  C.  (3  Hawks)  580,  holding  payment  of  a  less  sum  as  freight 
charges,  than  claimed  will  support  an  accord  and  satisfaction  where  paid  before 
freight  was  due;  Peace  v.  Nailing,  16  N.  C.  (1  Dev.  Eq.)  2S9,  to  the  point  that 
payment  of  part  of  debt  before  day,  if  accepted  in  full,  will  discharge  debt. 

Distinguished  in  Pierce  &  Co.  v.  Jones,  8  S.  C.  273,  28  Am.  Rep.  288,  holding 
where   creditors  by   written  agreement  with   insolvent  creditors  agree  to  accept 
twenty-five  cents  on  the  dollar  provided  all  creditors  agree,  such  agreement  being 
complied  with  is  a  satisfaction  of  claims  of  all  accepting  payment. 
What  constitutes  a  detriment. 

Distinguished  in  Saunders  v.  Whitcomb,  177  Mass.  457,  59  N.  E.  192,  holding 
payment  of  a  dishonored  bill  in  Massachusetts  instead  of  at  London,  where  no 
expense  had  been   incurred   in   placing  funds  for  payment  in   London,   is  not  a 
detriment. 
Effect  of  a  parol  accord  and  satisfaction  on  bond. 

Cited  in  Keeler  v.  Salisbury,  27  Barb.  485,  holding  after  condition  of  a  bond  is 


07  NOTES  ON  ENGLISH   RULING  .CASES.       [1    E.   R.  C.  370 

broken   a   valid   satisfaction   may   be   made  upon   an   agreement   which   is   not  by 
deed. 

Distinguished  in  Strang  v.  Holmes,  7  Cow.  224,  holding  by  reason  of  statutes 
a  parol  accord  and  satisfaction  of  conditions  of  a  penal  bond,  after  same  is  due, 
is  a  bar  to  action  on  the  bond. 
Accord  and  satisfaction  as  a  defense. 

Cited  in  Oliver  v.  Phelps,  20  N.  J.  L.  180,  holding  a  tenant  may  show  an  accord 
and  satisfaction  as  defense  to  an  action  for  rent  due;  Parker  v.  Mayes,  85  S.  C. 
419,  137  Am.  St.  Rep.  912,  67  S.  E.  559,  holding  that  joint  and  several  maker  of 
note  cannot  plead  as  defense  oral  agreement  by  which  he  had  been  released  from 
liability  by  payment  of  one-half  of  note. 
Pleading  accord  and  satisfaction. 

Cited  in  Schlessinger  v.  Schlessinger,  39  Colo.  44,  8  L.P.A.  (N.S.)  803,  88  Pac. 
970,  holding  that  plea  of  payment  of  less  amount  than  was  due,  which  was  bor- 
rowed for  purpose,  and  satisfaction  and  release  of  all  claims,  is  not  sufficient 
as  one  of  accord  and  satisfaction;  Blanchard  v.  Noyes,  3  N.  H.  518,  holding  a 
'  plea  simply  alleging  the  acceptance  of  a  smaller  sum  of  money,  in  satisfaction  of 
a  larger  sum  is  bad;  Hancombe  v.  Macdonald,  4  U.  C.  C.  P.  190,  on  effect  of  a 
mere  plea  of  satisfaction. 
Application  of  money  paid  where  creditor  has  several  claims. 

Cited  in  Caldwell  v.  Wentworth,  14  N.  H.  431,  holding  a  debtor  has  a  right  to 
direct  the  application  of  money  paid  where  creditor  has  several  claims  against 
him;  Hilton  v.  Burley,  2  N.  H.  193,  holding  where  no  direction  is  given  by  debtor, 
the  creditor  may  appropriate  it  to  any  legal  demand  then  due  him  from  debtor ; 
Pattison  v.  Hull,  9  Cow.  747,  on  right  of  party  paying  to  direct  manner  of  appli- 
cation. 
Necessity  and  nature  of  acceptance  of  accord  to  liquidate  claim. 

Cited  in  Nassoiy  v.  Tomlinson,  148  N.  Y.  326,  51  Am.  St.  Eep.  695,  42  N.  E. 
715,  holding  the  acceptance  can  only  be  in  terms  of  tender. 

Distinguished  in  Spruneberger  v.  Dentler,  4  Watts,  126,  holding  an  agreement 
to  pay  less  sum  and  to  deliver  goods  in  payment  of  greater  sum  must  have  been 
accepted  in  satisfaction  to  discharge  the  debt. 

1  E.  P.  C.  370,  FOAKES  v.  BEEP.  L.  P.  9  App.  Cas.  005,  51  L.  T.  N.  S.  833,  33 

Week.  Rep.  233,  54  L.  J.  Q.  B.  N.  S.  130. 
Discharge  of  a  liquid  debt  by  acceptance  of  smaller  sum  in  satisfaction. 

Cited  in  Dreyfus  v.  Roberts,  75  Ark.  354,  69  L.R.A.  82:1,  112  Am.  St.  Rep.  67, 
87  S.  W.  641,  5  Ann.  Cas.  521,  holding  acceptance  of  lessor  sum  for  greater  where 
evidenced  by  written  receipt  in  full  satisfaction  effects  a  discharge  of  debt;  Slade 
v.  Mutrie,  156  Mass.  19,  30  N.  E.  168,  holding  payment  of  part  of  a  debt  after 
whole  debt  payable  is  not  a  sufficient  consideration  to  support  a  promise,  not 
under  seal,  to  discharge  the  remainder;  Ex  parte  Zeigler,  83  S.  C.  78,  21  L.R.A. 
(N.S.)  1005,  64  S.  E.  513,  holding  that  payment  by  one  joint  debtor,  who  has  been 
discharged  in  bankruptcy,  of  sum  less  than  is  due  on  joint  debt  which  is  accepted 
in  satisfaction,  will  operate  in  favor  of  other  debtor;  Dalby  v.  Lauritzcn,  98  Minn 
75,  107  N.  W.  826,  on  sufficiency  of  consideration  to  support  discharge  of  debt ; 
Winter  v.  Kansas  City  Cable  R.  Co.  160  Mo.  159,  61  S.  W.  606,  73  Mo.  App.  173 
(in  dissenting  opinion  of  court  of  appeals),  on  lesser  sum  as  satisfaction  by 
agreement;  Henson  v.  Stever,  69  Mo.  App.  136,  holding  where  agreement  included 
compromise  of  other  differences  between  the  parties  a  sufficient  consideration  is 


1  E.  R.  C.  370]        NOTES  ON  ENGLISH  RULING   CASES.  68 

shown;  McKenzie  v.  Harrison,  120  N.  Y.  260,  8  L.R.A.  257,  17  Am.  St.  Rep.  63S, 

24  N.  E.  458,  holding  where  payment  is  made  under  an  agreement  recognized  as 
valid  by  the  parties  and  has  been  fully  executed  the  objection  cannot  be  raised; 
Jaffray  v.  Davis,  124  N.  Y.  164,  11  L.R.A.  710,  20  N.  E.  351,  4  Silv.  Ct.  App. 
315  (reversing  48  Hun,  500,  1  N.  Y.  Supp.  814),  holding  receipt  of  debtor's  note 
for  one-half  amount  of  debt  for  goods  sold,  secured  by  a  chattel  mortgage  on 
debtor's  property,  will  support  agreement  of  discharge;  Seymour  v.  Goodrich,  80 
Va.  303,  holding  payment  by  one  member  of  a  firm  of  part  of  firm  indebtedness 
upon  agreement  that  certain  members  shall  be  released  is  binding;  Price  v. 
Mitchell,  23  Wash.  742,  63  Pac.  514,  holding  an  agreement  to  accept  a  smaller 
sum  in  payment  of  a  larger  one  is  not  binding;  Lee  v.  Wagner,  71  Wis.  191,  36 
N.  W.  597,  holding  payment  of  part  of  debt  when  due  upon  agreement  that  it 
shall  be  in  full  satisfaction  of  the  whole,  is  nudum  pactum;  Re  Freeman,  117  Fed. 
680,  holding  where  something  is  given  and  accepted  of  value  it  is  a  good  pay- 
ment to  that  extent:  Fire  Ins.  Asso.  v.  Wickham,  141  U.  S.  564,  35  L.  ed.  860, 
12  Sup.  Ct.  Rep.  84,  on  accord  and  satisfaction  of  an  unliquidated  amount; 
Burgess  v.  Conway,  14  Can.  S.  C.  90,  holding  party  not  bound  by  acceptance  of 
a  sum  of  money,  if  more  was  due  to  him,  even  though  he  accepted  it  absolutely  as 
in  satisfaction  and  discharge;  Mason  v.  Meston,  14  B.  C.  22,  holding  that  contract 
to  accept  lesser  sum  in  payment  of  greater  is  nudum  pactum;  Pitfield  v.  Kimball, 

25  N.  B.  193,  holding  a  payment  of  $55  did  not  amount  to  satisfaction  of  a  liqui- 
dated demand  of  $105. 

Cited  in  notes  in  20  L.R.A.  795;  1  Eng.  Rul.  Cas.  390, — on  part  payment  as 
accord  and  satifaction ;  1  E.  R.  C.  397,  on  obligation  of  third  person  for  smaller 
amount  as  a  satisfaction. 

Cited  in  1  Beach,  Contr.  189,  on  existing  legal  obligation  as  a  consideration ; 
1  Beach,  Contr.  519,  on  accord  and  satisfaction  by  payment  of  less  than  amount 
due;  Benjamin,  Sales,  5th  ed.  70S,  769,  on  acceptance  of  smaller  amount  than 
due  as  satisfaction  of  debt;  Hollingsworth,  Contr.  126,  on  noninquiry  into 
adequacy  of  consideration  for  contract  if  it  is  something  of  value  in  contemplation 
of  law. 

Distinguished  in  Lincoln  Sav.  Bank  &  S.  D.  Co.  v.  Allen,  27  C.  C.  A.  87,  49  U.  S. 
App.  498,  82  Fed.  148,  holding  notes  taken  and  part  payment  a  sufficient  con- 
sideration  for   surrender   of  collateral   formerly  held. 

Criticised  in  Shelton  v.  Jackson,  20  Tex.  Civ.  App.  443,  49  S.  W.  415,  holding 
where  maker  of  bond  was  insolvent  acceptance  of  part  of  indebtedness  discharged 
the  bond. 

Disapproved  in  Frye  v.  Hubbell,  74  N.  H.  358,  17  L.R.A.  (N.S.)  1197,  OS  Atl. 
325,  holding  money  paid  and  received  from  an  insolvent  debtor  is  a  benefit  such 
as  will  bar  a  further  recovery;  Clayton  v.  Clark,  74  Miss.  499,  37  L.R.A.  771, 
00  Am.  St.  Rep.  521,  21  So.  565;  holding  an  agreement  to  receive  lesser  sum  in 
satisfaction  of  larger  one  where  accompanied  by  giving  up  of  note  discharges 
the  debt. 
—  Release  of  judgment. 

Cited  in  Benedict  v.  Rea,  35  Hun,  34,  on  insufficiency  of  part  payment  to  dis- 
charge a  judgment;  Roberts  v.  Brandies,  44  Hun,  468,  holding  compounding  of 
judgment  and  interest  by  cash  and  notes  by  strangers  was  good;  Soder  v.  Yorke, 
5  B.  C.  133,  on  the  inefficacy  of  an  unsealed  release  of  judgment;  Under- 
wood v.  Underwood  [1894]  P.  204,  03  L.  J.  Prob.  N.  S.  109,  6  Reports,  604,  70 
L.  T.  N.  S.  390,  42  Week.  Rep.  372,  holding  that  an  agreement  to  release  the  hus- 
band from  all  claims  for  alimony  in  consideration  of  the  payment  of  a  lesser  sum 
was  void  as  without  consideration. 


69  NOTES  <>\    ENGLISH    RULING   (ASKS.       [1    E.  R.  C.  393 

Payment  of  principal  without  interest. 

Cited  in  note  in  40  L.R.A.  I  N.S.)  591,  599,  on  acceptance  of  principal  as  affect- 
ing right  to  interest. 

Distinguished  in  Bidder  v.  Bridges,  L.  R.  37  Ch.  Div.  406,  57  L.  J.  Ch.  N.  S. 
300,  5&  L.  T.  N.  S.  656,  1  Eng.  Rul.  Cas.  393,  holding  that  the  acceptance  of  a 
cheque  by  the  solicitor,  for  costs  was  an  accord  and  satisfaction  of  the  costs 
though  it  did  not  contain  the  interest  on  the  costs,  to  which  the  plaintiff  \\:is 
entitled. 

—  Acceptance  of  goods. 

Cited  in  Seeley  v.  Cox,  28  N.  S.  210,  holding  that  agreement  to  accept  goods  in 
satisfaction  of  indebtedness  in  larger  amount  is  binding. 

—  Of  an   unliquidated  demand. 

Cited  in  Redmond  v.  Atlanta  &  B.  Air-Line  R.  Co.  129  Ga.  133,  58  S.  E.  874, 
holding  an  unliquidated  demand  extinguished  by  check  for  a  lesser  amount  than 
claimed,  where  creditor  signed  a  receipt  under  seal  releasing  debtor  from  the 
entire  claim;  Chicago,  M.  &  St.  P.  R.  Co.  v.  Clark,  178  U.  S.  353,  44  L.  ed.  1099, 
20  Sup.  Ct.  Rep.  924,  holding  a  release  of  part  of  a  disputed  claim  and  payment 
and  receipt  in  full  bars  a  further  recovery. 

Cited  m  note  in  1  Eng.  Rul.  Cas.  402,  on  part  payment  of  claim  for  unliqui- 
dated damages  as  a  satisfaction. 
Acceptance  necessary  to  accord  and  satisfaction. 

Cited  in  Skinner  v.  Franklin  County,  3  Pa.  Co.  Ct.  448,  holding  the  acceptance 
must  have  the  elements  of  an  agreement;  Mason  v.  Johnston,  20  Ont.  App.  Rep. 
412,  holding  the  part  payment  must  be  expressly  accepted  in  satisfaction  of  judg- 
ment to  have  that  effect ;  Rielle  v.  Reid,  28  Ont.  Rep.  497,  holding  the  assent  to  an 
accord  was  a  question  of  intention,  consideration  and  agreement. 
Effect  to  be  given  to  accepted  but  questioned  decisions  of  courts. 

Cited  in  Porteous  v.  Muir,  8  Ont.  Rep.  127,  holding  the  authority  of  unques- 
tioned decisions  must  prevail. 
Consideration  for  contract. 

Cited  in  note  in  6  Eng.  Rul.  Cas.  20,  on  what  may  constitute  consideration  for 
contract. 

1  E.  R.  C.  393,  BIDDER  v.  BRIDGES,  L.  R.  37  Ch.  Div.  406,  58  L.  T.  N.  S.  656, 

57  L.  J.  Ch.  N.  S.  300. 
Satisfaction  of  debt  by  acceptance  of  smaller  amount. 

Cited  in  Ex  parte  Zeigler,  83  S.  C.  78,  21  L.R.A.(N.S.)  1005,  64  S.  E.  513,  hold- 
ing that  payment  by  one  joint  debtor  who  has  been  discharged  in  bankruptcy, 
of  sum  less  than  is  due  on  joint  debt,  which  is  accepted  in  satisfaction  of  whole 
debt,  will  operate  as  such  in  favor  of  other  debtor. 

Cited  in  notes  in  20  L.R.A.  795,  on  accord  and  satisfaction  by  part  payment; 
40  L.R.A.  (N.S.)    591,  on  acceptance  of  principal  as  affecting  right  to  interest. 

Cited  in  Benjamin,  Sales,  5th  ed.  768,  on  payment  by  negotiable  security  for 
less  than  amount  due  as  a  satisfaction. 
Acceptance  of  stranger's  obligation  or  security. 

Cited  in  Mason  v.  Johnston,  20  Ont.  App.  Rep.  412,  holding  there  was  no  satis- 
faction of  debt  where  a  draft  for  a  lesser  amount  was  accepted  only  as  a  pro 
tanto  payment. 

Cited  in  note  in  20  L.R.A.  795,  on  accord  and  satisfaction  by  part  payment  by 
third  party. 

Criticised  in  Frye  v.  Hubbell,  74  N.  H.  358,  17  L.R.A. (N.S.)   1197,  6S  Atl.  325, 


1  E.  R.  C.  303]        NOTES  ON  ENGLISH  RULING  CASES.  70 

condemning  cases  which  hold  that  furnishing  security  for  a  part  of  the  debt  is  a 
sufficient  consideration  for  a  discharge  of  the  residue. 

Disapproved  in  Jaffray  v.  Davis,  48  Hun,  500,  1  N.  Y.  Supp.  814,  holding  debtor 
is  not  discharged  by  giving  note  for  one  half  the  claim,  secured  by  chattel  mort- 
gage on  his  property  which  note  is  paid. 

1  E.  R.  C.  398,  RICHARDS  &  BARTLET'S  CASE,  1  Leonard,  19. 
Executory  matters  as  accord  and  satisfaction. 

Cited  in  Sheetz  v.  Marks,  2  Pearson  (Pa.)  302,  holding  title  to  trust  property 
not  divested  by  assigning  it  for  creditors,  it  not  yet  having  passed  further. 

1  E.  R.  C.  400,  ADAMS  v.  TAPLING,  4  Mod.  88. 

Accord  and  satisfaction  of  uncertain  obligation  or  liability. 

Cited  in  Wilson  v.  Spencer,  11  Leigh,  261,  holding  conveyance  of  a  tract  of  land 
with  an  incumbrance  can  be  no  satisfaction  of  the  obligation  to  convey  the  same 
land  without  incumbrance. 

Distinguished  in  Foakes  v.  Beer,  L.  R.  9  App.  Cas.  605,  1  Eng.  Rul.  Cas.  370, 
holding  an  agreement  whereby  a  judgment  creditor  agreed  to  desist  from  enforc- 
ing his  judgment  if  the  debtor  would  pay  a  part  in  cash  and  part  in  instalments 
was  void  as  without  consideration. 

—  By  payment  of  less  sum. 

Cited  in  Sprungberger  v.  Dentler,  4  Watts,  126,  holding  that  agreement  to  pay 
less  sum  and  to  deliver  goods,  in  discharge  of  greater  sum,  must  be  fully  executed 
and  money  and  goods  accepted  in  satisfaction,  to  operate  as  extinguishment  of 
original  debt. 

Distinguished  in  Silvers  v.  Reynolds,  17  N.  J.  L.  275,  holding  that  debtor  may 
be  discharged  from  his  debt,  without  technical  release,  even  on  payment  of  less 
sum  than  is  due,  by  parol  agreement  executed,  or  canceling  evidence  of  debt. 

—  Of  sealed  obligation. 

Cited  in  Morris  Canal  &  Bkg.  Co.  v.  Van  Vorst,  21  N.  J.  L.  100,  to  the  point 
that  if  satisfaction  of  sealed  instrument  for  payment  of  money  is  under  seal,  it  is 
binding  although  less  sum  is  paid  than  is  due. 
Performance  of  existing-  contract  as  consideration. 

Cited  in  note  in  34  L.R.A.  36,  on  performance  of  existing  contract  obligation  to 
comply  with  lease  as  consideration  for  new  promise. 

1  E.  R.  C.  403,  CASE  v.  BARBER,  T.  Raym.  450. 

Accord  and  satisfaction  by  mutual  executory  promises. 

Cited  in  Bradshaw  v.  Davis,  12  Tex.  336,  holding  that  where  there  is  agreement 
to  receive  goods  at  future  day  in  payment  of  antecedent  indebtedness,  tender  of 
goods  within  time  discharges  indebtedness;  Goodrich  v.  Stanley,  24  Conn.  613, 
holding  upon  an  agreement  to  labor  in  satisfaction  of  a  note,  and  acceptance  of 
such  labor,  there  is  a  satisfaction  and  extinguishment  of  the  note;  Shoemaker  v. 
Fegley.  14  Pa.  Dist.  R.  850,  on  accord  and  satisfaction  by  mutual  executory 
promises;  Belcher  v.  Cook,  4  U.  C.  Q.  B.  401  (dissenting  opinion),  on  an  un- 
executed accord  as  a  defense. 

Disapproved  in  Frentress  v.  Markle,  2  G.  Greene,  553,  holding  an  unexecuted 
accord  is  no  bar  to  an  action ;  Waydell  v.  Luer,  5  Hill,  448,  holding  the  note  of  one 
of  several  joint  debtors  for  an  antecedent  debt  will  not  extinguish  liability  of 
such  joint  debtors  though  accepted  by  the  creditor  in  full  satisfaction;  Bates  v. 
Starr,  2  Vt.  536,  26  Am.  Dec.  568,  holding  an  accord  without  satisfaction^  not 


71  NOTES  ON  ENGLISH  RULING  CASKS.        [1  E.  11.  C.  403 

binding  upon  the  creditor;  Coit  v.  Houston,  3  Johns.  Cas.  243,  holding  an  agree- 
ment to  be  a  bar,  must  be  executed  and  satisfied  with  a  recompense  in    fact,   >>r 
with  an  action,  or  other  remedy  to  execute  it  and  recover  a  recompense. 
—  Assumption  of  obligation  by  third  parties. 

Cited  in  Pope  v.  Tunstall,  2  Ark.  201),  holding  the  addition  of  third  parties  to 
the  obligation  supports  plea  of  an  accord. 

Distinguished  in  Cozens  v.  Wier,  5  N.  S.  123,  holding  a  plea  setting  forth  agree 
ment  of  release  and  substitution  of  third  parties  and  that  such  third  parties  as- 
sumed the  debt,  is  good. 
Discharge  of  contract  after  breach. 

Cited  in  Morse  v.  Hueston,  4  N.  S.  61,  holding  after  breach  of  contract  it  can- 
not be  discharged  without  a  valid  agreement  being  substituted. 
Pleading  legality  of  matter  in  discharge. 

Cited  in  Armstrong  v.  Masten,  11  Johns.  1S9,  holding  it  is  not  requisite  ior  the 
defendant,  in  pleading  an  award  in  bar  of  an  action,  to  allege  performance. 
Pleading  an  agreement  in  defense  which  is  within  statute  of  frauds. 

Cited  in  Stern  v.  Drinker,  2  E.  D.  Smith,  401,  holding  that  demurrer  to  com- 
plaint on  ground  that  promise  was  not  alleged  to  be  in  writing  cannot  be  sus- 
tained; Bradley  v.  Blodget,  Kirby,  22,  1  Am.  Dec.  11  (dissenting  opinion),  on 
showing  parol  agreement  relative  to  sale  of  land;  Holbrook  v.  Armstrong,  10  Me. 
31,  holding  where  action  is  upon  implied  promise  and  defendant  would  avoid  it 
by  showing  a  special  agreement  required  to  be  in  writing,  he  must  plead  it  to  be 
in  writing;  Grafton  Bank  v.  Woodward,  5  N.  H.  99,  20  Am.  Dec.  566,  holding 
where  a  contract  to  give  time  is  not  averred  to  have  been  in  writing  it  must  be 
considered  as  not  in  writing;  Morehouse  v.  Cotheal,  21  N.  J.  L.  4S0,  holding  a 
title  by  devise  must  be  shown  in  pleading  such  a  title;  Palmer  v.  White,  65  N. 
J.  L.  69,  46  Atl.  706;  Reinheimer  v.  Carter,  31  Ohio  St.  579,— holding  the  plea, 
whether  the  agreement  or  promise  must  be  in  writing,  must  show  such  fact: 
Dewey  v.  Hoag,  15  Barb.  365,  on  necessity  of  defendant's  stating  agreement  in  bar 
to  be  in  writing;  Crooks  v.  Dickson,  15  U.  C.  C.  P.  23,  holding  a  plea  setting  up 
contract  or  an  alteration,  required  to  be  in  writing,  must  allege  it  was  made 
in  writing;  Moore  v.  Sullivan,  21  U.  C.  Q.  B.  445.  holding  where  in  a  plea  a 
contract  is  relied  on  which  is  binding  only  in  writing,  it  is  necessary  to  aver 
that  it  was  in  writing;  Hall  v.  Francis,  4  U.  C.  C.  P.  210,  holding  that  if  agree- 
ment stated  in  pica,  should  be  in  writing,  to  render  it  valid,  it  should  have  been 
so  alleged  in  plea;  Dalgleish  v.  Conboy,  26  U.  C.  C.  P.  254,  to  the  point  that  before 
common-law  procedure  act  it  was  necessary  to  aver  in  plea  that  contract  was  in 
writing  when  written  contract  was  required;  Allcroft  v.  Adams,  3S  Can.  S.  C. 
365  (dissenting  opinion),  on  necessity  of  showing  defense  to  statute  of  frauds; 
Young  v.  Austen,  L.  R.  4  C.  P.  553,  38  L.  J.  C.  P.  N.  S.  233,  20  L.  T.  N.  S.  396, 
17  Week.  Rep.  706,  on  the  right  to  demur  to  a  plea  of  an  oral  agreement  affecting 
a  written  instrument. 

Cited  in  Browne,  Stat.  Frauds,  5th  ed.  626,  on  necessity  for  defendant  pleading 
statute  of  frauds  as  a  defense. 

Distinguished  in  Green  v.  Seymour,  59  Vt.  459,  12  Atl.  206,  holding  that  in 
replication  to  plea  of  statute  of  limitations  wherein  is  set  forth  defendant's 
promise  to  waive  said  statute,  it  is  not  necessary  to  allege  that  promise  was  in 
writing. 

Disapproved  in  Bradford  Invest.  Co.  v.  Joost,  117  Cal.  204,  48  Pac.  1083, 
holding  where  answer  alleges  an  agreement  by  way  of  defense,  which  is  required 
to  be  in  writing,  it  is  not  necessary  that  it  be  set  forth  as  in  writing. 


1  E.  R.  C.  403]        NOTES  ON  ENGLISH  RULING  CASES.  72 

Necessity   of   setting   forth   writing   in   declaration   on    same. 

Cited  in  Kizer  v.  Lock,  9  Ala.  2G9;  Miller  v.  Drake,  1  Caines,  45, — holding  it  is 
not  necessary  that  the  writing  be  set  forth  in  the  declaration. 
Agreements  required  to  be  in   writing. 

Cited  in  Cochran  v.  Hislop,  3  U.  C.  C.  P.  440,  holding  that  purchase  of  growing 
timber  must  be  evidenced  by  writing  to  be  valid;  Hurlburt  v.  Thomas,  3  U.  C.  Q. 
B.  258,  on  whether  new  agreement  not  within  statute  of  frauds,  substituted  for 
original  agreement  within  statute,  must  be  in  writing. 

Cited  in  Browne,  State  Frauds,  5th  ed.  270,  on  inapplicability  of  statute  of 
frauds  as  to  guaranties  to  purchase  the  debt  itself. 

1  E.  R.  C.  406,  TAFF  VALE  R.  CO.  v.  NIXON,  1  H.  L.  Cas.  Ill,  affirming  the 

decision  of  the  Vice  Chancellor,  reported  in  7  Hare,  130. 
Equity  jurisdiction   of  complicated   accounts. 

Cited  in  Bellingham  v.  Palmer,  54  N.  J.  Eq.  136,  33  Atl.  199,  holding  jurisdic- 
tion of  equity  must  rest  upon  the  intricate  character  of  the  accounts  which  must 
be  complicated  that  it  cannot  be  tried  at  nisi  prius  with  any  certainty  that  an 
accurate  result  would  be  reached;  Davis  v.  Dyer,  62  N.  H.  231,  holding  that  in 
assumpsit  upon  account,  of  which  court  has  equitable  jurisdiction,  and  items  of 
which  are  so  numerous  and  complicated  that  jury  cannot  understand  case,  no 
absolute  right  to  trial  by  jury  exists;  Cranford  Twp.  v.  Watters,  61  N.  J.  Eq. 
284,  48  Atl.  316,  holding  the  test  is,  are  the  issues  so  numerous  and.  so  distinct, 
and  the  evidence  to  sustain  them  so  variant  that  a  jury  is  incompetent  to  intelli- 
gently deal  with  them;  Uhlman  v.  New  York  L.  Ins.  Co.  109  N.  Y.  421,  4  Am.  St. 
Rep.  482,  17  N.  E.  363,  holding  mere  fact  of  account  being  complicated  does  not 
give  equity  jurisdiction;  Black  v.  Boyd,  50  Ohio  St.  46,  33  N.  E.  207,  holding 
jurisdiction  of  equity  is  sustained  in  cases  of  complicated  mutual  accounts;  Fenno 
v.  Primrose,  116  Fed.  49,  holding  equity  has  jurisdiction  of  matters  of  dispute 
between  factor  and  principal  where  dealings  were  numerous  and  taking  an  'ac- 
count by  common-law  proceedings,  is  impracticable:  Whitehead  v.  Buffalo  &  L. 
H.  R.  Co.  7  Grant,  Ch.  (U.  C.)  351,  upholding  bill  in  equity  because  of  intricacy 
of  account;  Falls  v.  Powell,  20  Grant,  Ch.  (U.  C. )  454,  holding  it  being  a  matter 
of  account,  the  jurisdiction  of  a  court  of  equity  is'  concurrent  with  that  of  a 
court  of  law,  and  the  question  in  each  case  is  which  court  is  best  fitted  to  deal 
with  it;  Blodgett  v.  Foster,  114  Mich.  688,  68  Am.  St.  Rep.  504,  72  N.  W.  100, 
holding  a  suit  in  equity  is  proper  Avhere  great  complication  or  difficulty  is  in  the 
way  of  adequate  relief  at  law,  though  the  accounts  are  all  on  one  side;  Daley  v. 
Kennett,  75  N.  H.  536,  39  L.R.A.(N.S.)  45,  78  Atl.  123.  holding  that  in  trover 
by  holder  of  chattel  mortgage  to  recover  possession  of  chattels  from  one  denying 
title,  court  cannot  deny  defendant  jury  trial  because  matters  are  complicated, 
where  no  equitable  relief  is  necessary;  Gilbert  v.  Jarvis,  20  Grant,  Ch.  (U.  C.) 
465,  holding  that  demurrer  to  bill  for  discovery  would  not  be  sustained  where 
claim  for  fees  was  made  which  involved  items  excluding  1000  in  number  and 
settlement  was  refused  and  no  other  means  was  available. 
Right  to  jury   trial. 

Cited  in  note  in  39  L.R.A.lN.S. )   49.  52,  on  denial  of  jury  trial  because  matters 
in  issue  complicated. 
—  Diversity  of  parties. 

Cited  in  Price  v.  Middleton,  75  S.  C.  105,  55  S.  E.  156,  holding  equity  may  take 
jurisdiction  of  suit  for  damages  for  breach  of  partnership  contract  where  a  long 
and  intricate  accounting  of  profits  for  years  is  necessary;  Armstrong  v.  Robert- 
son, N.  B.   Eq.  Cas.   24!),  holding  equitable  accounting  proper   where  parties  are 


73  NOTES  o.\    ENGLISH§RULING  (ASKS.        [l  E.  R.  C.  -12:. 

diverse;   Franke  v.  McGrath,  22  X.  B.  456,  holding  an  account  can  be  had  more 
conveniently  in  equity  between  copartners  where  one  partner  held  legal  title  to 
property  with  power  of  sale  to  reimburse  himself  for  outlay. 
—  Rights   under   contracts. 

Cited  in  Dabbs  v.  Nugent,  13  L.  T.  X.  S.  396,  14  Week.   Rep.  94,  11  Jur.  N.  S. 
943,  holding  that  a  contractor  was  entitled  to  resort  to  equity  for  an  inquiry  as  to 
what  was  due  him  from  the  employer  on  a  contract. 
Repudiation  of  onerous  part  of  contract. 

The  decision  of  the  Vice  Chancellor  was  cited  in  Winnipeg  &  II.  B.  R.  Co.  v. 
Mann,  7  Manitoba  L.  R.  81,  holding  that  railway  company  could  not  take  benefit 
of  part  of  contract  entered  into  on  its  behalf  by  president  and  repudiate  contract 
as  to  another  part. 

1  E.  R.  C.  419,  SMITH  v.  LEVEAUX,  2  De  G.  J.  &  S.  1,  3  Xew  Reports,  18,  9 
Jur.  X.  S.  1140,  9  L.  T.  X.  S.  313,  12  Week.  Rep.  31,  33  L.  J.  Ch.  X.  S.  167, 
reversing  the  decision  of  the  Vice  Chancellor,  reported  in  1  Hem.  &  Mill.  123. 
Jurisdiction  of  equity  where  agent  seeks  an  accounting'  by  principal. 

Cited  in  Xash  v.  Burchard,  S7  Mich.  85,  49  X.  W.  492,  holding  equity  has  no 
jurisdiction  where  bill  for  an  accounting  is  brought  by  an  agent  against  his 
principal;  Badger  v.  McXamara,  123  Mass.  117,  holding  same  where  bill  is 
brought  to  recover  a  lixed  commission  upon  goods  consigned;  James  v.  Snarr,  15 
Grant,  Ch.  (U.  C.)  229,  holding  that  ordinarily,  bill  for  account  will  not  lie  by 
agent  against  principal. 

Cited  in  note  in  1  E.  R.  C.  423,  on  jurisdiction  of  equity  over  bill  for  an  ac- 
counting where  adequate  remedy  at  law  exists. 
—  Necessity  of  showing-  mutual  or  complicated  accounts. 

Cited  in  Tiffany,  Ag.  463,  on  right  of  agent  to  accounting  in  equity  when  ac- 
counts are  complicated. 

Disapproved  in  Falls  v.  Powell,  20  Grant,  Ch.  (U.  C.)  454,  holding  it  is  not 
necessary  to  show,  either  that  there  are  mutual  accounts,  or  that  the  accounts 
are  complicated. 

Right  to  jury  trial  of  complicated  matters. 

Cited  in  note  in  39  L.R.A.(X.S.)  52,  on  denial  of  jury  trial  because  matters  in 
issue  complicated. 

1  E.  R.  C.  425,  LAYCOCK  v.  PICKLES,  4  Best  &  S.  497.  10  Jur.  X.  S.  336,  9  L. 

T.  X.  S.  378,  12  Week.  Rep.  76.  33  L.  J.  Q.  B.  X.  S.  43. 
Essentials  of  an  account  stated. 

Cited  in  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Camden  Bank,  47  Ark.  541,  1  S.  W.  704, 
holding  the  auditing  of  the  account  by  an  authorized  agent  of  the  company  and 
acceptance  of  statement  by  laborers,  constituted,  in  each  case,  an  account  stated; 
R.  v.  Dunn,  11  Can.  S.  C.  385,  on  admission  of  liability  as  necessary  to  an  ac- 
count stated;  Fraser  v.  McLeod,  18  X.  S.  286,  holding  it  not  an  account  stated 
where  one  party  assumed  as  part  of  it  debt  to  pay  debt  of  his  brother;  Lynch  v. 
William  Richards  Co.  38  X.  B.  160,  to  the  point  that  essence  of  account  stated  is 
that  in  consideration  of  discharge  of  items  on  either  side  if  balance  is  agreed  to  be 
due;  Murray  v.  Moffat,  19  X.  B.  481,  holding  that  in  order  to  recover  on  account 
stated  it  must  appear  that  account  was  stated  in  reference  to  former  transactions 
between  parties;  Brennan  v.  Crawley,  16  Week.  Rep.  754,  on  what  constitutes 
an  account  stated. 

Cited  in  note  in  27  L.R.A.  812,  on  what  constitutes  an  account  stated. 


1  E.  R.  C.  425]        NOTES  ON  ENGLISH  RULING  CASES.  74 

—  Mutuality    of    accounts. 

Cited  in  State,  Weigel,  Prosecutor  v.  Hartman  Steel  Co.  51  N.  J.  L.  446,  20 
Atl.  67,  holding  it  is  not  essential  that  there  should  be  mutual  or  counter  ac- 
counts between  the  parties  to  support  an  action  for  an  account  stated. 

—  Parol  statement  of  accounts  involving  writings. 

Cited  in  Frost  v.  Brennan,  9  N.  S.  40,  holding  notwithstanding  consideration  of 
note  as  for  an  interest  in  land  a  recovery  may  be  had  on  an  account  stated,  the 
debt  being  admitted  and  a  promise  made  to  pay;  Wilson  v.  Marshall,  Ir.  Rep.  2 
Ch.  356,  holding  account  may  be  stated  upon  items  one  of  which  was  upon  a  con- 
tract within  statute  of  frauds. 
Nature   of   an    account    stated. 

Cited  in  Vanbebber  v.  Plunkett,  26  Or.  562,  27  L.R.A.  811,  38  Pac.  707,  holding 
an  account  stated  is  merely  evidence  of  the  debt;  Sparling  v.  Savage,  25  U.  C. 
Q.  B.  259,  on  the  nature  of  an  account  stated. 

—  Balance  as  actionable  debt. 

Cited  in  Rand  v.  Wright,  129  Mass.  50,  holding  an  answer  sufficient  which  al- 
leged an  accounting  together  and  adjustment  of  items  and  agreement  as  to 
amount  of  money  due. 

Distinguished  in  Lynch  v.  William  Richards  Co.  38  N.  B.  160,  where  the  action 
was  not  to  recover  the  balance  struck. 
Right  of  creditor  to  appropriate  payment  to  nonactionable  debt. 

Cited  in  Benjamin,  Sales,  5th  ed.  799,  on  lawfulness  of  appropriation  of  pay- 
ment by  creditor  to  debt  not  recoverable  by  action. 

1  E.  R.  C.  433,  COCKING  v.  WARD,  1  C.  B.  858,  15  L.  J.  C.  P.  N.  S.  245. 
Recovery  on  account  stated. 

Cited  in  Gross  v.  Bricker,  18  U.'C.  Q.  B.  410,  holding  that  if  grantor  acknowl- 
edged that  he  agreed  to  pay  certain  sum  if  grantee  would  cancel  agreement  and 
give  up  possession  of  land,  after  such  cancelation  and  surrender,  action  on  account 
stated  was  sustainable;  Great  Western  R.  Co.  v.  Grand  Trunk  R.  Co.  24  U.  C.  Q. 
B.  107,  to  the  point  that  parties  to  ultra  vires  agreement  might  state  account  of 
mutual  claims  upon  which  account  balance  might  be  recovered;  Runkle  v.  Ketter- 
ing, 127  Iowa,  6,  102  N.  W.  142,  holding  that  one  who  for  consideration, 
agrees  with  another  to  pay  for  him  future  balance  of  his  open  account,  is  liable 
therefor  when  such  balance  is  found  on  his  investigation  to  be  due. 

Distinguished  in  Zimmerman  v.  Woodruff,  17  U.  C.  Q.  B.  584,  holding  that  action 
on  account  stated  could  not  be  sustained  by  one  party  to  sealed  contract,  where 
by  its  terms,  payment  was  to  be  made  to  plaintiff  jointly  with  another. 
Recovery  on  an  account  stated  containing  items  within  statute  of  frauds. 

Cited  in  Murray  v.  Moffat,  19  N.  B.  481  (dissenting  opinion),  on  recovery  upon 
an  account  stated  under  contract  within  statute  of  frauds;  Frost  v.  Brennan,  9 
N.  S.  40,  holding  amount  of  consideration  of  note  may  be  recovered  on  an  account 
stated  though  note  is  for  an  interest  in  land  where  the  debt  was  acknowledged 
and  a  promise  to  pay  made. 

Cited  in  note  in  27  L.R.A.  819,  on  what  constitutes  an  account  stated  to  circum- 
vent statute. 

Distinguished  in  Fraser  v.  McLeod,  18  N.  S.  286,  holding  an  account  stated  can- 
not be  relied  on  for  creating  the  liability  in  the  first  instance,  unless  it  has  a 
new  consideration. 


75  NOTES  (J.\  ENGLISH   RULING  CASES.       LI  E-  R.  C.  433 

Effect  of  statute  of  frauds  on  executed  part  of  agreement. 

Cited  in  Carter  v.  Brown,  3  S.  C.  29S,  holding  that  although  verbal  agreement 
to  serve  as  overseer,  made  in  August  1864,  for  year  18G5,  for  quantity  of  cotton 
to  be  delivered  January  1st,  18G6,  was  void,  recovery  might  be  had  on  implied 
promise  arising  at  completion  of  service;  Hodges  v.  Green,  28  Yt.  358;  Ascutney 
Bank  v.  McKormaby,  2S  Vt.  721, — holding  that  action  may  be  maintained  upon 
parol  agreement  to  pay  consideration  for  deed  of  land  which  has  been  delivered; 
Wetherbee  v.  Potter,  99  Mass.  354,  holding  that  oral  agreement  to  reimburse  one 
who  furnishes  money  to  buy  land  for  joint  benefit  is  not  within  statute  of  frauds; 
McMillan  v.  Williams,  9  Manitoba  L.  Bep.  627,  holding  balance  of  purchase*  money 
cannot  be  recovered  in  action  on  contract  to  sell  land  though  deed  has  passed; 
Holmwood  v.  Gillespie,  11  Manitoba  L.  Bep.  1S6,  holding  that  an  implied  contract 
arising  out  of  performance  on  one  side  is  enforceable;  Giles  v.  McEwan,  11  .Mani- 
toba L.  Bep.  168,  to  like  effect;  Mason  v.  Scott,  22  Grant,  Ch.  (U.  C.)  59,  holding 
fact  that  part  of  a  verbal  agreement  which  is  within  statute  is  executed,  does  not 
cure  the  defect  in  respect  of  the  other  part;  Meek  v.  Gass,  11  N.  S.  243,  holding 
while  no  action  can  be  sustained  on  the  agreement  which  is  within  the  statute 
of  frauds,  a  recover}'  as  of  money  paid  can  be  had,  from  one  who  has  received 
payment  and  who  repudiates  the  contract;  Knowlman  v.  Bluett,  43  L.  J.  Exch. 
N.  S.  151,  L.  B.  9  Exch.  307,  32  L.  T.  N.  S.  262,  22  Week.  Bep.  758,  holding  that 
mother,  having  maintained  illegitimate  children  pursuant  to  verbal  agreement 
of  father  to  pay  therefor,  can  recover  agreed  sum ;  Sanderson  v.  Graves,  L.  B. 
10  Exch.  234,  44  L.  J.  Exch.  N.  S.  210,  33  L.  T.  N.  S.  269,  23  Week.  Bep.  797,  on 
the  application  of  the  statute  of  frauds  to  contracts  executed  on  one  part  only ; 
Wilson  v.  Marshall,  Ir.  Bep.  2  C.  L.  356,  holding  account  may  be  stated  upon 
items  one  of  which  was  within  statute. 

Distinguished  in  Proctor  v.  Thompson,  13  Abb.  N.  C.  340,  holding  that  con- 
tract for  sale  of  land,  required  to  be  in  writing,  may  be  rescinded  by  subsequent 
parol  agreement;  Pulbrook  v.  Lawes,  L.  B.  1  Q.  B.  Div.  284,  45  L.  J.  Q.  B.  N.  S. 
178,  34  L.  T.  N.  S.  95,  holding  that  where  a  prospective  lessee  improved  the  prop- 
erty with  the  lessor's  consent,  he  could  recover  for  such  improvements  if  he  was 
prevented  from  taking  possession  of  the  premises  through  the  lessor's  failure  to 
carry  out  his  part  of  a  parol  agreement  to  lease;  Angell  v.  Duke,  L.  B.  10  Q.  B. 
174,  44  L.  J.  Q.  B.  N.  S.  78,  32  L.  T.  N.  S.  25,  23  Week.  Bep.  307,  holding  that 
where  the  collateral  promise  and  agreement  were  not  within  the  statute  of 
frauds  an  action  could  be  maintained  on  it;  Savage  v.  Canning,  Ir.  Bep.  1  C.  L. 
434,  16  Week.  Bep.  133,  holding  that  where  work  was  done  and  accepted  under 
a  contract  void  under  the  statute  of  frauds,  the  plaintiff  could  recover  quantum 
meruit,  though  he  sued  on  a  special  contract. 

Implied  promise  to  pay  under  unenforceable  contract. 

Cited  in  Wilson  v.  Mason,  38  U.  C.  Q.  B.  14,  holding  that  fact  that  contract 
is  void  because  not  in  writing  will  not  prevent  action  for  money  had  and  received 
to  recover  back  money  involuntarily  paid  under  it;  Bivers  v.  Doe,  4  U.  C.  C.  P. 
21.  holding  that  where  plaintiff,  teller  of  bank,  was  compelled  to  make  good  de- 
ficiency in  amount  due  on  defendant's  note  to  bank  because  of  mistake  in  receiving 
less  than  amount  due  thereon,  he  may  recover  against  defendant  in  action  for 
money  paid  for  his  use. 

Distinguished  in  Kennedy  v.  Broun,  9  Jur.  N.  S.  119,  13  C.  B.  N.  S.  677,  32  L. 
J.  C.  P.  N.  S.  137,  7  L.  T.  N.  S.  626,  11  Week.  Bep.  284,  1  Eng.  Bui.  Cas.  789, 
holding  that  an  acknowledgment  by  a  client  at  the  termination  of  the  litigation 
as  to  the  value  of  the  legal  services  of  the  advocate,  was  not  a  promise  to  pay 
upon  which  he  could  recover. 


1  E.  R.  C.  433]        NOTES  ON  ENGLISH  RULUsG  CASES.  76 

Illegality  of  claim  as  defense  to  account  stated. 

Cited  in  Dunbar  v.  Johnson,  108  Mass.  519,  holding  that  in  action  on  account 
stated  defendant  may  plead  that  whole  claim  was  founded  in  illegal  transaction. 
Necessity  of  new  consideration. 

Cited  in  Stryker  v.  Vanderbilt,  27  N.  J.  L.  68,  holding  that  promise  to  extend 
time  of  performing  contract  will  not  be  binding  unless  made  upon  some  new  con- 
sideration. 
Parol  evidence  of  land  contract. 

Cited  in  King  v.  Woodruff,  23  Conn.  56,  60  Am.  Dec.  625,  holding  that  parol 
evidence  is  admissible  to  prove  sum  agreed  to  be  paid,  where  tenant,  under  parol 
agreement,  has  enjoyed  use  of  land  according  to  stipulated  terms  of  that  agree- 
ment. 
Recovery  of  price  of  land. 

Cited  in  Johnstone  v.  Cowan,  25  U.  C.  Q.  B.  470,  to  the  point  that  promise  of 
grantee  to  pay  purchase  money  after  delivery  of  deed  may  be  enforced,  although 
deed  contains  receipt  for  purchase  price;  Green  v.  Bvtrtch,  1  U.  C.  C.  P.  313,  hold- 
ing that  assignment  of  right  to  land  executed  under  seal,  in  which  receipt  of  pur- 
chase price  is  acknowledged,  will  not  support  action  for  purchase  money;  Spar- 
ling v.  Savage,  25  U.  C.  Q.  B.  259;  Casey  v.  McCall,  19  U.  C.  C.  P.  90,— holding 
that  grantor  was  concluded  by  receipt  in  deed  for  purchase  money. 
.Sufficiency  of  consideration  for  promise. 

Cited  in  Rees  v.  Howcutt,  4  U.  C.  C.  P.  284,  holding  that  executed  consideration 
would  not  support  promise  to  allow  passage  over  lot  sold  by  promisor  to  promisee; 
Jackson  v.  Yeomans,  39  U.  C.  Q..  B.  280,  holding  that  forbearance  to  take  proceed- 
ings on  mortgage  for  instalment  due  upon  promise  of  mortgagor  to  pay  overdue 
instalment  at  certain  time  will  not  support  action  on  promise,  where  mortgage 
contained  no  covenant  to  pay. 
Enforcibility  of  contracts. 

Cited  in  Brown  v.  Marsh,  1  U.  C.  C.  P.  438,  holding  that  promise  by  adminis- 
trator to  pay  note  endorsed  by  intestate,  although  notice  of  dishonor  was  not 
given  on  account  of  indorser's  death,  was  enforcible;  Taylor  v.  Knowles,  30  U.  C. 
Q.  B.  200,  holding  that  where  parol  evidence  was  required  to  connect  memo- 
randum with  previous  letter  in  order  to  make  complete  contract  relating  to  land, 
specific  performance  would  not  be  enforced. 

Cited   in   Benjamin   Sales,   5th   ed.    183,   on   what   are   acts   within   statute   of 
frauds;    Benjamin   Sales,  5th  ed.   307,  on  meaning  of   phrase  "not  enforcible  by 
action." 
Contracts  relating  to  interest  in  land. 

Cited  in  1  Underbill  Land.  &  T.  380,  on  agreement  to  surrender  tenancy  to 
another  and  secure  acceptance  of  landlord  as  sale  of  interest  in  land. 

1  E.  R.  C.  439,  DUNBAR  v.  LEM,  1  Bro.  P.  C.  3. 
Opening  of  accounts  between   partners  for   error. 

Cited  in  Parsons  Partn.  4th  ed.  515,  on  opening  of  accounts  between  partners 
for  error. 
Sufficiency  of  title  or  claim  to   support   action. 

Cited  in  Sheldon  v.  Chisholm,  3  Grant,  Ch.  (U.  C.)  655,  holding  the  purchase  of 
a  reversion  will  not  be  disturbed  in  his  enjoyment  of  the  property  where  plain- 
tiff has  no  claim  or  pretense  for  disturbing  him. 


77  NOTES  UN    ENGLISH  RULING  CASES.        LI    E.   Et.  C.  449 

1  E.  R.  C.  440,  BROWNWELL  v.  BROWNWELL,  2  Bro.  Ch.  02. 
(Ground  for  opening   settled  account. 

Cited  in  Swayze  v.  Swayze,  37  N.  J.  Eq.  180,  holding  where  facts  prove  that 
party  possessed  and  abused  confidence  which  was  reposed  in  him  strong  ground 
is  presented  for  opening  an  account. 

Cited  in  Parsons  Tartu.  4th  ed.  515,  on  opening  of  accounts  between  partners 
for  error. 

—  Surcharge  and  falsification. 

Cited  in  Bay  State  Gas  Co.  v.  Lawson,  188  Mass.  502,  74  N.  E.  921,  holding 
a  bill  alleging  accounts  of  officers  of  corporation  were  falsely  and  fraudulently 
made,  with  prayer  that  accounts  be  opened  or  that  they  be  surcharged  and  falsi- 
fied sets  forth  ground  for  equitable  relief;  Philips  v.  Belden,  2  Edw.  Ch.  21, 
holding  where  enough  appears  to  induce  a  belief  of  errors  having  occurred,  the 
court  shall  give  leave  to  surcharge  and  falsify;  Bullock  v.  Boyd,  Hoff.  Ch.  204, 
(cites  Lord  Colchester's  note  of  the  case,  2  Br.  c.  c.  62),  on  right  to  falsify  ac- 
count at  large;  Atwell  v.  Milton,  4  Hen.  &  M.  253,  holding  party  may  falsify  ac- 
count of  administrator  settled  before  appointed  commissioners,  if  capable  of  pro- 
ducing evidence  to  that  purpose:  Bainbridge  v.  Wilcox,  Baldw.  530,  Fed.  Cas. 
No.  755,  holding  the  errors  must  be  specified  and  will  not  be  corrected  on  doubt- 
ful or  only  probable  testimony. 

—  Where  account  is  stale. 

Cited  in  Manhattan  Co.  v.  Lydig,  4  Johns.  377,  4  Am.  Dec.  280,  holding  though 
whole  account  cannot  be  opened  after  such  a  lapse  of  time  yet  particular  items 
may  be  falsified;  Ray  v.  Bogart,  2  Johns.  Cas.  432  (dissenting  opinion),  on 
opening  a  stale  account. 

—  Burden  of  proof. 

Cited  in  Paulling  v.  Creagh,  54  Ala.  640,  holding  where  errors  and  omissions 
only  are  charged,  the  onus  probandi  rests  upon  the  party  complaining  of  them, 
(iiounds  for  equitable  relief. 

Cited   in  Baker  v.  Biddle,  Baldw.   394,   Fed.   Cas.  No.   704,   holding  the  relief 
must  be  an  incident  or  consequence  of  the  discovery,  or  the  party  after  obtaining 
it  will  be  sent  to  law  for  his  final  remedy. 
Stale  claims. 

Cited  in  Mellislrs  Estate,  1  Pars.  Sel.  Eq.  Cas.  482,  holding  lapse  of  time 
alone  will  not  bar  accounting  by  trustee. 

1  E.  R.  C.  449,  HENDERSON  v.  EASON,  17  Q.  B.  701,  10  Jur.  518,  21  L.  J.  Q.  B. 

N.  S.  82. 
Accountability  of  a  co-tenant  for  use  and  occupation  of  common  property. 
Cited  in  Woolever  v.  Knapp,  18  Barb.  265,  holding  that  one  tenant  in  common 
in  possession,  without  any  demand  by  other  tenants  to  be  allowed  to  enjoy 
premises  with  him,  is  not  liable  to  account  to  cotenants:  Rich  v.  Rich,  50  Hun. 
199,  2  N.  Y.  Supp.  770,  holding  that  tenant  in  common  who  occupies  premises 
himself  is  not  liable  to  his  cotenant  for  value  of  use  of  property  so  occupied-. 
Israel  v.  Israel,  30  Md.  120,  90  Am.  Dec.  571  :  Crane  v.  Waggoner,  27  Ind.  52,  89 
Am.  Dec.  493, — holding  that  one  tenant  in  common,  unless  he  has  been  excluded 
from  possession  by  his  cotenant,  cannot  maintain  action  against  latter  for  use 
and  occupation;  Stanhope  v.  Suplce,  2  Brevvst.  (Pa.)  455,  holding  that  if  one 
tenant  in  common  occupy  property,  and  take  produce  for  his  own  benefit,  his 
cotenant  cannot   maintain   account  against   him;    Ragan    v.    McCoy.   29    Mo.   356, 


J    E.  R.  C.  449]        NOTES  ON  ENGLISH  RULING  CASES.  78 

holding  that  one  tenant  in  common  who  receives  benefit  from  land,  but  who  does 
not  interfere  with  cotenant's  use  of  land,  is  not  bound  to  account  for  proportion- 
ate share  of  benefit  received;  McCord  v.  Oakland  Quicksilver  Min.  Co.  64  Cal. 
134,  49  Am.  Rep.  686,  27  Pac.  863,  holding  that  one  of  several  tenants  in  common 
of  mine,  who  does  not  exclude  his  cotenants  may  work  mine  in  usual  way,  without 
being  liable  in  damages  to  cotenants;  Hayden  v.  Merrill,  44  Vt.  336,  8  Am.  Rep. 
372,  holding  that  under  statute  occupancy  of  one  tenant  in  common  is  beneficial, 
and  at  profit,  and  is  exclusive,  he  is  bound  to  account  for  what  he  has  received 
more  than  his  share;  Ayotte  v.  Nadeau,  32  Mont.  498,  81  Pac.  145,  holding  that 
under  code  action  for  reasonable  value  of  use  and  occupation  of  city  lot  is  main- 
tainable by  one  cotenant  against  another  as  to  net  profits  resulting  from  such 
occupation;  Reynolds  v.  Wilmeth,  45  Iowa,  693,  holding  that  tenant  in  common 
is  not  liable  to  his  cotenants  for  use  and  occupancy  of  land  in  absence  of  agree- 
ment; Hawley  v.  Burd,  6  111.  App.  454,  holding  that  in  action  of  account  issue 
before  court  is  whether  there  should  be  accounting  and  evidence  as  to  whether 
tenant  in  common  had  received  more  than  his  share  is  inadmissible;  Bird  v. 
Bird,  15  Fla.  424,  21  Am.  Rep.  296,  holding  that  where  there  is  liability  of  occupy- 
ing, cotenant,  because  of  exclusion  of  others,  it  extends  only  to  accounting  for 
what  he  has  received  beyond  his  share;  Hall  v.  Fisher,  20  Barb.  441,  12  Mor.  Min. 
Rep.  S8,  to  the  point  that  tenant  in  common  is  not  liable  for  negligence  or  misuse 
of  common  property,  nor  what  he  made  by  diligence,  unless  appointed  bailiff;  Dres- 
ser v.  Dresser,  40  Barb.  300,  holding  that  one  cotenant  cannot  recover  for  use  and 
occupation  of  premises  by  his  cotenant  for  period  subsequent  to  expiration  of  lease 
of  premises,  where  no  new  agreement  is  made;  Elwell  v.  Burnside,  44  Barb.  447, 
holding  that  where  several  tenants  in  common  enters  upon  land  and  cuts  and 
removes  timber  and  converts  it  to  his  own  use  he  is  guilty  of  waste  and  liable 
to  cotenants  under  statute;  Dewing  v.  Dewing,  165  Mass.  230,  42  N.  E.  1128, 
holding  the  cotenant  called  upon  to  account  for  occupancy  is  entitled  to  be  al- 
lowed for  his  services  and  board  and  for  use  of  his  animals  and  utensils;  Fenton 
v.  Miller,  110  Mich.  45,  72  Am.  St.  Rep.  502,  74  N.  W.  384,  holding  exclusive 
occupancy  is  not  enough  to  create  liability  under  statute;  Kean  v.  Connelly,  25 
Minn.  222,  33  Am.  Rep.  458,  holding  one  tenant  in  common  cannot  recover  of  his 
cotenant  for  taking  and  converting  to  his  own  use  the.  products  of  the  common 
land;  Webster  v.  Calef,  47  N.  H.  289,  holding  assumpsit  will  not  lie  in  favor  of 
a  cotenant  for  an  accounting  for  use  and  occupation  of  common  property:  Sailer 
v.  Sailer,  41  N.  J.  Eq.  398,  5  Atl.  319,  holding  in  order  to  render  one  cotenant 
liable  to  another  for  rent  or  use  and  occupation  there  must  be  something  more 
than  mere  occupancy  by  one  and  forbearance  to  occupy  by  the  other;  LaBarron 
v.  Babcock,  122  N.  Y.  153,  9  L.R.A.  625,  19  Am.  St.  Rep.  488,  25  N.  E.  253,  hold- 
ing where  he  has  occupied  the  common  property  without  having  ousted  or  denied 
the  rights  of  his  cotenants,  he  is  not  liable  to  account;  Chaffee  v.  Franklin,  11 
R.  I.  578,  holding  a  cotenant  cannot  sue  his  cotenant  for  use  and  occupation 
except  on  an  agreement;  Wright  v.  Wright,  59  How.  Pr.  176,  holding  that  where 
tenants  in  common  sell  and  convey  property  and  one  receives  entire  purchase 
money,  other  can  maintain  action  for  money  had  and  received  to  recover  portion 
of  purchase  price;  Munsie  v.  Lindsay,  10  Ont.  Pr.  Rep.  173,  holding  that  tenant 
in  common  occupying  common  property  is  not  chargeable  with  value  of  timber 
rut  by  him  on  such  property  during  his  occupancy;  Guptill  v.  Ingersoll,  2  N.  B. 
Eq.  Rep.  252,  holding  that  tenant  in  common  of  fishing  year  cannot  require  ac- 
count from  cotenants  who  used  same  under  license  procured  by  latter  where  such 
license   was   required  by  law;    Young  v    Heron,   14   Grant,   Ch.    (U.   C.      580,   on 


79  NOTES  ON  ENGLISH  RULING   CASES.        LI  E.  R.  C.  449 

tenant  in  common  as  bound  to  account  to  cotenant  in  respect  to  occupation  of 
property  owned  in  common;  Hill  v.  Hiekin  [1S97]  2  Cli.  579,  66  L.  J.  Ch.  N.  S. 
717,  77  L.  T.  N.  S.  127,  46  Week.  Rep.  137,  holding  that  the  statute  relative  to 
accounts  between  tenants  in  common,  did  not  apply  to  actions  where  the  defend- 
ant had  not  been  a  tenant  or  bailee  of  his  co-owner. 

Cited  in  note  in  1  E.  R.  C.  456,  on  account  between  tenants  in  common. 

Distinguished  in  Coleman  v.  Coleman,  1  Pearson  (Pa.)  470,  holding  that 
tenants  in  common  of  ore  bank  can  demand  account  from  their  cotenants  when- 
ever they  take  more  than  their  share  of  ore;  Ayotte  v.  Nadeau,  32  Mont.  498,  81 
Pac.  145,  holding  under  the  code  of  civil  procedure  in  force  one  cotenant  may 
maintain  suit  for  reasonable  value  of  the  use  and  occupation  of  city  lot  by  his 
cotenant;  Edsall  v.  Merrill,  37  N.  J.  Eq.  114,  holding  statute  makes  one  tenant 
in  common  liable  to  account  as  bailee,  where  he  takes  possession  and  makes  use 
of  property  as  his  own;  West  v.  Weyer,  46  Ohio  St.  66,  15  Am.  St.  Rep.  552,  18 
N.  E.  537,  holding  a  tenant  in  common  liable  for  use  of  common  estate  though 
used  merely  to  pasture  stock;  Hazard  v.  Albro,  17  R.  I.  181,  20  Atl.  834,  holding 
statutes  make  a  tenant  in  common  who  receives  more  than  comes  to  his  just 
share,  ipso  facto,  bailee  for  his  cotenant  for  the  excess. 

Disapproved  in  Gage  v.  Gage,  66  N.  H.  282,  28  L.R.A.  829,  29  Atl.  543,  holding 
a  cotenant  liable  for  a  balance  due  his  cotenant  where  he  uses  more  than  his 
share  of  common  property. 
Liability  for  rents  and  profits. 

Cited  in  Wilcox  v.  Wilcox,  48  Barb.  327,  holding  husband  of  tenant  in  com- 
mon not  liable  for  rent,  in  absence  of  agreement  therefor;  Zapp  v.  Miller,  109  N. 
Y.  51,  15  N.  E.  889,  holding  that  one  tenant  in  common  who  was  induced  to  leave 
premises  by  fraud  and  undue  influence  of  cotenant  could  maintain  action  to 
recover  profits;  Lancaster  v.  Flowers,  208  Pa.  199,  57  Atl.  526,  holding  that  under 
act  of  1895  one  tenant  in  common  may  recover  from  cotenant  share  of  rent  which 
cotenant  had  received,  or  if  cotenant  is  in  actual  possession  may  demand  and 
recover  share  of  occupation  rents;  Kelley  v.  Kelley,  13  Phila.  179,  36  Phila.  Leg. 
Int.  284,  holding  that  heirs  cannot  require  widow  who  has  occupied  premises  to 
account  for  share  of  annual  value  of  premises,  where  she  received  no  rent: 
Borscheld's  Estate,  16  Phila.  234,  40  Phila.  Leg.  Int.  141,  holding  that  widovv 
who  is  guardian  of  children  and  cotenant  with  them  of  deceased  husband's 
estate,  is  not  chargeable  with  rent,  except  that  which  she  actually  received: 
Norris  v.  Gould,  17  Phila,  318,  41  Phila.  Leg.  Int.  377,  15  W.  N.  C.  187, 
holding  that  cotenant  may  maintain  action  for  account  where  his  co- 
tenant  receives  rent  for  property  from  third  person;  Humphries  v. 
Davis,  100  Ind.  369,  holding  he  is  not  bound  to  pay  rent  unless  he 
excludes  his  cotenant;  Reynolds  v.  Wilmeth,  45  Iowa,  693,  holding  in  absence 
of  agreement  or  refusal  to  surrender  possession,  he  is  not  liable  unless  he  has 
received  rent  for  common  premises  from  third  party;  Monro  v.  Toronto  R.  Co.  4 
Ont.  L.  Rep.  36,  holding  the  right  to  recover  for  mesne  profits  depends  upon  ques- 
tion whether  the  cotenant  had  been  excluded,  there  having  been  no  actual  receipt 
of  rents;  Oland  v.  McNeil,  34  N.  S.  453;  Re  Kirkpatrick.  10  Ont.  Pr.  Rep.  4  — 
holding  that  cotenant  was  not  liable  for  profits  taken  by  him  from  common  prop- 
erty when  there  was  no  exclusion  or  ouster;  Rice  v.  George,  20  Grant,  Ch.  (U.  C. ) 
221,  holding  that  tenant  in  common  in  actual  possession  of  joint  property  is  not 
chargeable  with  rent;  Farquharson  v.  Stewart,  1  D.  L.  R.  581,  on  right  of  one  ten- 
ant in  common  to  compel  accounting  by  cotenant  for  profits  derived  from  common 
property;  McPherson  v.  McPherson,  10  Ont.  Pr.  Rep.  140,  holding  that  claim  of 


1  E.  R.  C.  449]        NOTES  ON  ENGLISH  RULING  CASES.  SO 

cotenants  against  one  having  received  more  than  his  share  of  rent  does  not  become 
charge  on  land  until  judgment  is  obtained;  Frost  v.  Disbrow,  12  N.  B.  73,  holding 
that  tenant  in  common  cannot  maintain  action  for  money  had  and  received  against 
cotenant  for  profits,  unless  account  has  been  settled  and  balance  agreed  on ; 
Coleman's  Appeal,  62  Pa.  252,  holding  as  to  fructus  industria  les  sole  enjoyment 
merely  of  common  property  does  not  render  cotenant  accountable  even  though 
profit  is  made  by  the  enjoyment. 

Cited  in  note  in  28  L.R.A.  830,  on  liability  of  cotenants  to  account  for  use  and 
occupation  and  rents  and  profits. 

Distinguished  in  Woolley  v.  Schrader,  116  111.  29,  4  N.  E.  658;  McParland  v. 
Larkin,  155  111.  84,  39  N.  E.  609,— holding  he  is  liable  for  all  he  shall  take  and 
use  of  profits  or  benefits  of  the  estate  in  greater  proportion  than  his  interest. 

Disapproved  in  Dodson  v.  Hays,  29  W.  Va.  577,  2  S.  E.  415;  Early  v.  Friend, 
16  Gratt.  21,  78  Am.  Dec.  649, — holding  one  tenant  in  common  may  maintain  a 
suit  in  equity  for  an  account  of  rents  and  profits  where  the  cotenant  has  occu- 
pied the  whole  of  the  common  property. 
Remedy  for  recovery  against  co-owner. 

Cited  in  Hope  v.  Ferris,  30  U.  C.  C.  P.  520,  on  remedy  for  recovery  of  a  claim 
due  to  co-owner. 

1  E.  R.  C.  458,  R.  v.  YARBOROUGH,  5  Bing.  163.  2  Bligh,  N.  R.  147,  1  Dow  & 
C.  178,  affirming  the  decision  of  the  Court  of  King's  Bench,  reported  in  3 
Barn.  &  C.  91,  4  Dowl.  &  R.  790. 
Ownership  of  land  formed  by  accretion. 

Cited  in  Ocean  City  Asso.  v.  Shriver,  64  N.  J.  L.  550,  51  L.R.A.  425,  46  Atl. 
690,  holding  title  of  grantee  of  land  bordering  on  ocean,  by  force  of  the  descrip- 
tion itself,  extends  to  high  water  mark  and  includes  the  accumulated  soil  that 
has  arisen  from  alluvial  formations;  St.  Clair  County  v.  Lovingston,  23  Wall. 
46,  23  L.  ed.  59,  holding  the  accretion  is  the  results  of  deposits  made  by  the 
water  and  it  is  immaterial  whether  flow  of  water  was  natural  or  affected  by 
artificial  means ;  Leverich  v.  Mobile,  110  Fed.  170,  on  the  right  of  riparian  pro- 
prietors to  alluvium;  St.  John  v.  Smith,  8  N.  B.  103,  holding  where  the  line  of 
low  water  recedes  by  imperceptible  degrees,  the  accretion  belongs  to  the  owner  of 
the  land ;  Parker  v.  Elliott,  1  U.  C.  C.  P.  470,  on  question  of  right  by  accretion ; 
Throop  v.  Cobourg  &  P.  R.  Co.  5  U.  C.  C.  P.  509,  holding  that  owner  of  lands  ad- 
joining lake  was  entitled  to  extension  of  land  by  accretion;  Hindson  v.  Ashby 
[1896]  2  Ch.  1,  65  L.  J.  Ch.  N.  S.  515,  74  L.  T.  N.  S.  327,  60  J.  P.  484,  45  Week. 
Rep.  252,  on  accretions  to  land  as  belonging  to  the  owner  of  the  shore  line;  Foster 
v.  Wright,  L.  R.  4  C.  P.  Div.  43S,  49  L.  J.  C.  P.  N.  S.  97,  44  J.  P.  7,  holding  that 
the  gradual  accretions  of  land  from  water  belong  to  the  owner  of  the  land  added 
to;  Scratton  v.  Brown,  6  Dowl.  &  R.  536,  4  Barn.  &  C.  485,  28  Revised  Rep. 
344,  holding  that  where  the  accretion  had  been  imperceptible,  it  passed  to  the 
owner  of  the  shoreline. 

Cited  in  notes  in  58  L.R.A.  193,  194,  200,  204,  on  accretion  to  shore  lands; 
1  E.  R.  C.  477,  on  right  to  land  formed  by  accretion;  12  E.  R.  C.  191,  on  public 
right  of  fishing  in  navigable  and  tidal  waters. 

Cited  in  1  Farnham  Waters,  324,  326,  on  riparian  owner's  right  to  accretion: 
3  Washburn  Real  Prop.  6th  ed.  72,  on  effect  of  change  of  course  of  stream  due 
to  sudden  convulsions  of  nature  on  rule  as  to  thread  of  stream  constituting 
boundary;  3  Washburn  Real  Prop.  6th  ed.  75,  on  right  to  accretions  on  sea- 
shore. 


81  NOTES  ON  ENGLISH    RULING   CASES.        [1    E.   R.  C.  458 

The  decision  of  the  King's  Bench  was  cited  in  Lovingston  v.  St.  Clair  County, 
64  111.  r>G,  16  Am.  Rep.  510,  holding  alluvion  on  the  .Mississippi  belongs  to  the 
riparian  owner;  Babson  v.  Tainter,  79  Me.  368,  in  Atl.  63,  holding  the  owner  of 
flats  has  no  fixed  and  absolute  title  thereto  but  the  ana  may  be  extended  or 
lessened  by  accretion;  Gerrish  v.  Clough,  4S  X.  H.  9,  2  Am.  Rep.  105,  97  Am.  Dee. 
561,  holding  land  formed  on  one  side  of  a  stream  by  variations  of  the  channel, 
caused  by  the  natural  flowing  of  the  water  therein,  belongs  to  the  owner  of  the 
land  on  that  side  of  stream;  Gould  v.  Hudson  River  R.  Co.  6  N.  Y.  522  (dis- 
senting opinion),  on  ownership  by  alluvion;  Throop  v.  Cobourg  &  P.  R.  Co.  •">  I  . 
C.  C.  P.  509,  holding  the  owner  under  a  deed,  conveying  to  the  '"bank  of  lake 
Ontario*'  entitled  to  new  soil  attaching  itself  to  the  bank  of  the  lake. 
—  As  against  the  king  or  the  public 

Cited  in  barman  v.  Benson,  8  Mich.  18,  77  Am.  Dee.  435,  holding  the  linn  land, 
which  is  made  by  alluvium,  becomes  private  and  not  public  property. 

Cited  in  note  in  23  E.  R.  C.  737,  on  prescriptive  right  of  crown  to  foreshore. 

The  decision  of  the  King's  Bench  was  cited  in  Nebraska  v.  Iowa,  143  U.  S.  359, 
36  L.  ed.  1S6,  12  Sup.  Ct.  Rep.  396,  holding  accretion  leaves  the  state  boundary 
still  the  center  of  the  old  channel;  Topping  v.  Colin,  71  Xeb.  559,  99  X.  W.  372, 
holding  that  conveyance  by  grantee  of  United  States  land  bounded  in  part  by 
river  bank,  without  describing  such  lands  by  metes  and  bounds,  but  by  survey 
number,  passes  title  to  accretion  thereto;  Kraut  v.  Crawford.  IS  Iowa,  549,  87 
Am.  Dec.  414,  holding  accretions  between  meander  line  and  water's  edge  on 
navigable  stream  belong  to  the  riparian  owner. 
— Imperceptibility  of  process. 

Cited  in  Camden  &  A.  Land  Co.  v.  Lippincott,  45  X.  J.  L.  405.  holding  although 
a  visible  increase  took  place  from  year  to  year  the  increase  belonged  to  the 
owner  of  the  land  bounded  by  the  sea:  Jefferis  v.  East  Omaha  Land  Co.  134  U.  S. 
178,  33  L.  ed.  S72,  10  Sup.  Ct.  Rep.  518,  holding  where  bill  alleges  land  was 
formed  during  a  period  of  20  years  by  '"imperceptible  degrees"  it  is  sufficient  ; 
Shey  v.  MeHeffey,  7  X.  S.  350,  holding  that  where  accretion  has  not  occurred  so 
rapidly  as  to  have  been  perceptible  at  any  one  moment,  it  must  be  considered 
alluvion  by  slow  and  imperceptible  degrees. 

Distinguished  in  Atty.  Gen.  v.  Reeve,  1  Times  L.  R.  675,  holding  that  where  it 
■was  possible  to  ascertain  by  marks  and  measures  what  land  was  being  added,  the 
increase  was  not  imperceptible. 

The  decision  of  the  King's  Bench  was  cited  in  Nix  v.  Pfeifer,  73  Ark.  199,  SS 
S.  W.  951,  holding  that  test  of  what  is  '"gradual  and  imperceptible"  in  sense  of 
rule  in  regard  to  accretion,  is  that,  though  witnesses  may  see  from  time  to  time 
that  progress  has  been  made,  they  could  not  see  it  while  process  was  going  on; 
Hempstead  v.  Lawrence,  147  App.  Div.  624,  132  X.  Y.  Supp.  615,  holding  that 
where  intervals  of  weeks  and  months  were  necessary  to  show  changes  by  accretion 
such  change  might  be  considered  "imperceptible;"  Philadelphia  Co.  v.  Stimson. 
223  U.  S.  605,  56  L.  ed.  570,  32  Sup.  Ct.  Rep.  340;  Shively  v.  Bowlby,  152  U.  S. 
35,  38  L.  ed.  331,  14  Sup.  Ct.  Rep.  548, — to  the  point  that  where  land  encroaches 
upon  water  by  gradual  and  inperceptible  degrees,  accretion  belongs  to  owner 
of  land;  Mulry  v.  Xorton,  29  Hun,  660,  holding  that  owner  of  shore  land  will 
not  acquire  title  to  island  and  beaches  added  to  it  by  shifting  of  inlet,  as  such 
accretions  did  not  occur  by  small  and  imperceptible  degrees:  Hagan  v.  Campbell, 
8  Port.  (Ala.)  9,  33  Am.  Dec.  267,  holding  where  increase  was  occasioned  by  a 
process  so  slow  and  secret  as  to  render  it  impossible  to  discover  how  much  is 
added  in  each  moment  of  time  it  belongs  to  the  riparian  proprietor:  Wallace  v. 
Xotes  on  E.  R.  C. — 6. 


1  E.  E.  C.  458]        NOTES  ON  ENGLISH  RULING  CASES.  82 

Driver,  61  Ark.  429,  31  L.R.A.  317,  33  S.  W.  G41,  holding  it  is  not  necessary  that 
the  formation  be  indiscernible  by  comparison  at  two  distinct  points  of  time; 
Mahon  v.  McCully,  7  N.  S.  323,  to  the  point  that  word  "imperceptibly"  means  im- 
perceptible in  progress  and  not  imperceptible  after  long  lapse  of  time;  Linthicum 
v.  Coan,  64  Md.  439,  54  Am.  Rep.  775,  2  Atl.  826,  holding  the  word  "impercepti- 
ble" means  imperceptible  in  its  progress;  Mulry  v.  Norton,  100  N.  Y.  424,  53  Am. 
Rep.  206,  3  N.  E.  581  (affirming  29  Hun,  660),  holding  the  increase  must  be  by 
such  imperceptible  degrees  that  the  progress  at  the  time  could  not  be  perceived; 
Boorman  v.  Sunnuchs,  42  Wis.  233,  on  proof  of  character  of  reliction;  Shey  v. 
McHeffey,  7  N.  S.  350,  holding  that  where  accretion  has  not  occurred  so  rapidly 
as  to  have  been  perceptible  at  any  one  time,  it  must  be  considered  as  allusion  by 
slow  and  imperceptible  degrees. 

The  decision  of  the  King's  Bench  was  distinguished  in  Benson  v.  Morrow,  61 
Mo.  345,  holding  the  alluvion  formed  by  the  Missouri  river  is  not  explainable  by 
the  terms  "avulsion"  and  "gradual  accretion." 
Erosion.  , 

Cited  in  Penker  v.  Canter,  G2  Kan.  363,  63  Pac.  617,  holding  one,  who  originally 
had  no  riparian  rights,  entitled  to  the  alluvion  formed  where  river  cuts  away 
other  land  and  by  gradual  recession  leaves  new  soil  attached  to  his  freehold; 
Champlain  &  St.  L.  R.  Co.  v.  Valentine,  19  Barb.  484,  holding  where  the  en- 
croachment is  gradual,  and  its  progress  imperceptible,  the  owner  of  the  bank 
may  lose  his  land. 
—  Law  or  custom  as  basis  of  right. 

Cited  in  Mercer  v.  Denne  [1905]  2  Ch.  538,  21  Times  L.  R.  760,  70  J.  P.  65,  54 
Week.  Rep.  303  [1904]  2  Ch.  534,  20  Times  L.  R.  609,  holding  that  an  accretion 
which  is  added  to  a  shore  which  is  subject  to  a  custom,  will  also  become  subject 
to  such  custom. 

The  decision  of  the  King's  Bench  was  cited  in  Shively  v.  Bowlby,  152  U.  S.  1,  38 
L.  ed.  331,  14  Sup.  Ct.  Rep.  54S,  holding  the  rule  that  the  accretion  belongs  to 
the  owner  of  the  land  is  independent  of  the  law  governing  the  title  to  the  soil 
covered  by  the  water. 
Public  domain. 

Cited   in  Baltimore  v.  McKim,  3  Bland,  Ch.  453,  on  the  impersonal   and  un- 
divided nature  of  public  land  ownership. 
Commission  for  inquisition  as  to  title  of  Crown  to  lands. 

Cited  in  Atty.  Gen.  v.  Dominion  Coal  Co.  44  N.  S.  423,  on  power  of  Crown  to 
issue  commission  to  hold  inquest  as  to  title  of  Crown  to  land. 

1  E.  R.  C.  480,  DOE  EX  DEM.  CHRISTMAS  v.  OLIVER,  5  Mann.  &  R.  202. 
Estoppel. 

Cited  in  Miller  v.  Hampton,  37  Ala.  342,  holding  that  delivery  bond,  which 
does  not  recite  any  fact  showing  that  defendant  had  possession  of  property  at 
service  of  writ  does  not  estop  him  from  showing  that  he  did  not  have  possession 
of  property  at  that  time:  MeCusker  v.  McEvey,  10  R.  I.  606  Appx.  (dissenting 
opinion),  on  effect  of  covenant  of  title  by  person  not  owning  property  as  estoppel 
against  persons  not  in  privity  of  contract  or  of  estate;  Chapman  v.  Abrahams, 
61  Ala.  108,  holding  that  mortgage  on  wife's  land  executed  by  husband  and  wife, 
containing  covenant  of  warranty,  though  void  as  to  wife,  estops  husband  from 
denying  its  validity  as  to  his  life  interest :  Taggart  v.  Risley,  4  Or.  235,  holding 
that  matter  in   deed  to  operate  as  estoppel   must  be  of   such   character  that,   if 


S3  NOTES  ON  ENGLISH  RULING   CASKS.        |  1    K.  R.  C.  -ISO 

untrue,  party  alleging  it  would  be  liable  in  some  form  of  action,  to  respond  in 
damages  to  party  injured  for  covenant  broken  or  for  deceit  and  fraud;  Caldwell 
v.  Auger,  4  Minn.  217,  Gil.  156,  77  Am.  Dec.  515,  holding  that  joint  owners  of 
property  levied  upon  for  debt  of  one  joint  owner,  is  estopped  from  showing  that 
latter  had  no  interest  in  property  where  he  informed  sheriff  at  time  of  levy  thai 
debtor  had  interest  in  it;  Pass  v.  Lea,  32  N.  C.  410,  holding  that  person  entitled 
to  distributive  share  in  certain  slaves  belonging  to  estate,  is  estopped  from 
denying  title  to  slaves  at  time  he  gave  deed  of  certain  of  said  slaves  specifically 
and  by  name,  when  afterwards  sued  by  grantee  to  recover  slaves;  Stewart  v. 
Walters,  38  N.  J.  L.  274,  holding  that  estoppel  of  judgment  in  personam  only 
binds  parties  and  privies;  Kansas  City  use  of  Enright  v.  Ratekin,  30  Mo.  App. 
416  (dissenting  opinion),  on  equitable  estoppel  as  arising  to  prevent  legal  title 
to  property  from  being  used  as  means  of  injustice;  Gove  v.  White,  20  Wis.  420, 
holding  that  one  essential  element  of  equitable  estoppel  by  which  man  is  to  be 
precluded  from  claiming  what  is  his  own,  is  that  purchaser  and  party  claiming 
benefit  of  such  estoppel  should  have  been  ignorant  of  true  state  of  title;  Doe  ex 
dem.  Potts  v.  Dowdall,  3  Houst.  (Del.)  369,  11  Am.  Rep.  757,  holding  the  estop- 
pel only  closes  the  mouth  of  one,  when  to  let  him  speak,  would  be  contrary  to 
honesty  and  good  conscience;  St.  Joseph  v.  Landis,  54  Mo.  App.  315,  holding  that 
it  is  no  defense  to  tax  bill  for  construction  of  sewer  that  it  was  built  on  private 
property,  where  it  was  so  built  with  owner's  consent,  as  he  would  be  estopped  to 
object  to  oust  city;  Re  Sixteenth  Street  Opening,  4  Pa.  Co.  Ct.  124,  holding  that 
doctrine  of  estoppel  can  never  be  applied  to  indirectly  accomplish  result  which 
cannot  be  directly  accomplished  by  act  of  party  sought  to  be  estopped  for  want  of 
capacity. 

Cited  in  note  in  15  E.  R.  C.  304,  on  estoppel  of  tenant  to  deny  landlord's  title. 
.  Cited  in  Benjamin  Sales,  5th  ed.  106,  on  quasi  mutual  consent  to  contract  by 
estoppel;  Benjamin  Sales,  5th  ed.  112,  on  estoppel  to  deny  that  intention  as  mani- 
fested was  party's  real  intention. 
—  To  set  up  after-acquired  title. 

Cited  in  Crittenden  v.  Johnson,  14  Ark.  447,  holding  that  before  enactment  of 
statute  (Dig.  Ch.  37,  section  4)  after-acquired  title  by  grantor  related  to  and 
perfected  title  of  grantee  only  where  he  had  conveyed  by  deed  with  covenant  of 
warranty;  Dodd  v.  Williams,  3  Mo.  App.  278,  holding  that  doctrine  of  enurement 
and  estoppel,  that  covenants  of  title  in  deed  operate  to  transfer  after-acquired 
title  by  operation  of  law,  is  not  to  be  enforced  as  against  purchasers  under  laws 
for  registry  of  deeds:  Hart  v.  Gregg,  32  Ohio  St.  502,  holding  that  deed  by  son 
of  expectancy  in  land,  containing  no  covenants  of  warranty,  does  not  estop 
grantor  from  asserting  after-acquired  title;  Barwick  v.  Wood,  48  N.  C.  316,  hold- 
ing that  deed  of  remainderman  in  title  of  slaves  during  existence  of  life  estate, 
will  enure  to  benefit  of  grantee,  by  relation  back,  upon  expiration  of  life  estate; 
McCusker  v.  McEvey,  9  R.  I.  528,  11  Am.  Rep.  275,  holding  that  if  one  having  no 
title  to  land,  conveys  same  with  warranty  by  deed  duly  recorded,  and  he  after- 
wards acquires  title  and  conveys  to  another,  purchaser  of  latter  is  estopped  to 
aver  that  original  grantor  was  not  seized  at  time  of  his  conveyance  to  first 
grantee;  McAdams  v.  Bailey,  169  Ind.  518,  13  L.R.A.(N.S.)  1003,"  124  Am.  St. 
Rep.  240,  82  N.  E.  1057,  holding  that  irrespective  of  jurisdiction  of  courts  of 
equity,  it  has  always  been  possible  to  convey  subsequently  acquired  interests  by 
operation  of  principle  of  estoppel;  Adickes  v.  Allison,  21  S.  C.  245,  on  estoppel  of 
parties  from  asserting  claim  as  against  him,  six  years  after  sale  by  sheriff,  under 
it  and  when  sheriff  could  no  longer  protect  himself,  where  such  lien  was  recognized 


1  E.  R.  C.  480]'      NOTES  ON  ENGLISH  RULING  CASES.  84 

by  interested  parties  at  time  of  sale;  Turner  v.  Cnrran,  2  B.  C.  51,  holding  that 
agreement  for  sale  of  pre-emption  claim  is  void  under  land  act  of  1888  and  is  not 
made  valid  by  subsequent  grant  to  assignor;  Canadian  P.  R.  Co.  v.  Vancouver,  2 
B.  C.  306,  holding  that  subsequently  acquired  title  cannot  be  set  up  against  dedi- 
cation of  land  for  public  way  by  person  making  dedication ;  Doe  ex  dem.  Kerr  v. 
Wetmore,  8  N.  B.  140,  holding  that  where  S  conveyed  to  defendant  by  deed  poll 
land  of  which  he  had  neither  title  or  possession,  but  he  afterward  acquired  title, 
which  was  purchased  by  plaintiff  at  sheriff's  sale,  without  notice  of  prior  convey- 
ance, defendant  had  no  estate  by  estoppel ;  Doe  v.  Breakenridge,  1  U.  C.  C.  P.  492, 
holding  that  heir  is  estopped  from  setting  up  against  his  grantee,  title  subse- 
quently acquired  from  person  claiming  under  deed  from  intestate. 
Conclusiveness  of  judgment. 

Cited  in  Graver  v.  Faurot,  64  Fed.  241,  to  the  point  that  dismissal  of  bill 
in  chancery  will  be  presumed  to  be  final  and  conclusive  adjudication  upon  merits, 
unless  contrary  is  apparent  on  face  of  pleadings  or  in  decree;  Schwan  v.  Kelly, 
173  Pa.  72,  33  Atl.  1107,  27  Pittsb.  L.  J.  N.  S.  70,  holding  that  in  order  to  ren- 
der judgment  effectual  as  bar  it  must  appear  that  cause  of  action  is  same  in 
substance  and  can  be  sustained  by  same  evidence;  Hadden  v.  Hadden,  G  B.  C.  340, 
to  the  point  that  in  action  on  foreign  judgment  court  must  be  satisfied  that  ad- 
judication was  final  and  conclusive. 

1  E.  R.  C.  486,  SWAN  v.  WESTERN  BANK,  4  Sc.  Sess.  Cas.  3d  Series,  678. 
Title  by  estoppel. 

Cited  in  note  in  1  E.  R.  C.  495,  on  accretion  of  title  by  way  of  estoppel. 

1  E.  R.  C.  498,  THELLUSSON  v.  WOODFORD,  11  Ves.  Jr.  112,  1  Bos.  &  P.  N. 
R.  357,  8  Revised  Rep.  104,  affirming  the  decision  of  the  Court  of  Chancery, 
reported  in  4  Ves.  Jr.  227,  4  Revised  Rep.  205. 
Valid  accumulations  under  will. 

Cited  in  Hascall  v.  King,  162  N.  Y.  134,  76  Am.  St.  Rep.  302,  56  N.  E.  515, 
holding  that  application  of  part  of  income  of  trust  estate  to  payment  of  mort- 
gages thereon  constitutes  accumulation,  and  is  prohibited  under  statute;  Gold- 
tree  v.  Thompson,  79  Cal.  613,  22  Pac.  50,  holding  accumulations  for  the  benefit 
of  minors  in  being  to  end  with  their  minority,  to  be  valid;  Bryan  v.  Knicker- 
backer,  1  Barb.  Ch.  409,  holding  trust  for  accumu1.:. Lion  of  rents  and  profits  dur- 
ing life  of  a  person  in  being  to  be  valid;  Odell  v.  Odell,  10  Allen,  1;  Pray  v. 
liegeman,  92  N.  Y.  508, — on  accumulations  of  rents  and  profits  of  land  being 
permissible  for  the  period  of  lives  in  being  and  twenty-one  years  thereafter  prior 
to  statute  governing  the  subject;  Hascall  v.  King,  162  N.  Y.  134,  76  Am.  St.  Rep. 
302,  56  N.  E.  515,  as  illustrating  the  extremes  to  which  accumulations  under  will 
were  carried  and  the  restrictive  legislation  resulting  therefrom. 

Cited  in  2  Washburn  Real  Prop.  6th  ed.  676,  on  validity  of  provision  for  ac- 
cumulation of  income  of  estate;  2  Beach  Trusts.  1520,  on  perpetuities  and 
accumulations. 

Distinguished  in  Vail  v.  Vail,  4  Paige,  317,  holding  trust  for  the  accumulation 
of  the  income  of  property  until  youngest  beneficiary  should  reach  a  certain  age 
to  be  void  under  statute. 

The  decision  of  the  Court  of  Chancery  was  cited  in  Jones  v.  Hamersley,  4  Dem. 
427,  on  the  determination  of  the  validity  of  a  will  whereby  property  was  left 
in  trust  to  receive  the  rents  and  profits,  and  giving  the  widow  a  power  of  appoint- 
ment as  to  who  should  receive  it;  Rogers  v.  Ross,  4  Johns.  Ch.  388,  holding  pro- 


S5  NOTES  ON   ENGLISH  RULING  CASKS.       [i    K.   R.  c.  498 

vision  for  accumulation  until  the  vesting  of  an  executory  devise  valid:  Ash 
hurst  v.  Given,  5  Watts  &  S.  323,  holding  that  trust  providing  for  accumulation 
during  a  life  in  being,  is  valid;  Williams  v.  Williams,  8  N.  Y.  525,  on  limitation 
upon  trusts  for  accumulation  under  statute  passed  in  consequence  of  the  decision 
in  the  Thelluson  Case;  Carr  v.  Green,  2  M'Cord,  L.  75,  as  an  illustration  of  a 
testator's  withdrawing  the  enjoyment  of  an  estate  from  three  generations  of  his 
family;  Beckam  v.  De  Saussure,  9  Rich.  L.  531,  on  period  of  accumulation  being 
extended  to  unborn  issue  of  unborn  sons  as  should  be  living  at  time  of  ancestor's 
death;  Turvin  v.  Newcome,  3  Kay  &  J.  1G,  3  Jur.  N.  S.  203,  5  Week.  Rep.  35, 
holding  provision  for  accumulation  during  minority  of  successive  tenants  in  tail, 
void. 

Future  limitations   and   execution    clevises  offensive   to   rule   against   per- 
petuities. 

Cited  in  Anderson  v.  Jackson,  16  Johns.  381,  8  Am.  Dec.  330  (dissenting  opin- 
ion), as  exemplifying  the  inconveniences  and  dangers  arising  from  executory 
devises. 

Cited  in  note  in  20  L.R.A.  509,  on  effect  on  prior  takers  of  failure  of  gift  be- 
cause it  violates  rule  against  perpetuities. 

Cited  in  2  Washburn  Real  Prop.  6th  ed.  641,  on  validity  of  devise  of  freehold 
estate  to  commence  in  future 

Distinguished  in  Hinckley's  Estate,  58  Cal.  457,  holding  perpetual  trusts  for 
charities  valid. 

The  decision  of  the  Court  of  Chancery  was  cited  in  Fitchle  v.  Brown,  211  U.  S. 
321,  53  L.  ed.  202,  29  Sup.  Ct.  Rep.  106,  holding  that  rule  against  perpetuities  is 
not  violated  by  will  creating  trust  for  "as  long  period  as  is  legally  possible;" 
Hall  v.  Chaffee,  14  N.  H.  215,  holding  that  where  devise  is  made  to  "A"  in  fee 
and  if  "A"  should  die  without  issue,  then  to  B  in  fee,  limitation  over  to  B  by 
way  of  executory  devise  is  void  for  its  remoteness;  Bender  v.  Bender,  225  Pa.  434, 
74  Atl.  246  (affirming  26  Lane.  L.  Rev.  33),  holding  that  interest  is  not  obnoxious 
to  rule  against  perpetuities,  if  it  begin  within  life  in  being  and  twenty-one  years 
thereafter,  though  it  may  extend  beyond;  Literarj'  Fund  v.  Dawson,  1  Rob.  (Va. ) 
402,  holding  executory  devise  valid  if,  from  the  intention  expressed  in  the  will, 
the  contingency  upon  which  it  is  limited,  is  to  happen  within  a  reasonable  time;- 
Hall  v.  Chaffee,  14  N.  H.  215,  holding  executory  devise  to  take  effect  upon  indefi- 
nite failure  of  issue  to  be  void;  Edgerly  v.  Barker,  66  N.  H.  434,  28  L.R.A.  328, 
31  Atl.  900,  holding  that  devise  which  suspends  alienation  for  lives  in  being  and 
until  their  sons  shall  reach  40  years  of  age  is  invalid  as  to  the  last  19  years  and 
vests  in  the  takers  when  the  latter  becomes  21  years;  Lovett  v.  Lovett,  10  Phila. 
537,  31  Phila.  Leg.  Int.  349,  holding  that  executory  devise  is  valid  if  limited 
upon  a  contingency  which  must  happen  within  lives  in  being  or  twenty-one  years 
thereafter;  Ferguson  v.  Ferguson,  39  U.  C.  Q.  B.  232,  holding  devise  to  unborn 
grandson  to  be  void  for  remoteness;  Campbell  v.  Rawdon,  19  Barb.  494;  Lorillard 
v.  Coster,  5  Paige,  172,  on  validity  of  restraint  of  alienation  for  lives  in  being 
and  twenty-one  years  and  nine  months  thereafter;  Henry  v.  Archer,  Bail.  Eq.  535, 
Riley  Eq.  247,  as  giving  full  review  of  doctrine  of  perpetuities. 
—  Based  on  numerous  lives. 

Cited  in  Edgerly  v.  Barker,  66  N.  H.  434,  28  L.R.A.  32S,  31  Atl.  900,  holding 
that  gift  to  testator's  grandchildren  when  youngest  arrives  at  age  of  forty  years, 
may  be  sustained  by  modifying  provision  so  as  to  make  gift  take  effect  on  reach- 
ing twenty-one  years  instead  of  forty;  Coster  v.  Lorillard,  14  Wend.  265,  holding 
devise  to  trustees  for  lives  of  twelve  nephews  and  nieces  remainder  in  fee  to  their 


1   E.  R.  C.  49S]        NOTES  ON  ENGLISH  RULING  CASES.  86 

children  valid  at  common  lav/  but  void  under  the  statute:  Madison  v.  Larmon, 
170  111.  65,  02  Am.  St.  Rep.  356,  48  N.  E.  556,  on  rule  that  estate  may  be  limited 
upon  any  number  of  lives  in  being,  and  such  lives  need  bave  no  interest  in  the 
estate  so  limited;  Mills  v.  Mills,  50  App.  Div.  221,  63  N.  Y.  Supp.  771,  on  sus- 
pension of  alienation  being  permissible  for  any  number  of  lives  in  being  and 
twenty-one  years  thereafter. 

Cited  in  Gray  Perpet.  2d  ed.  149,  150,  152,  156,  157,  163,  164,  184,  185,  188,  on 
validity  of  suspension  of  alienation  for  life  or  lives  in  being  and  twenty-one  years 
and  the  fraction  allowed  for  gestation  thereafter. 
—  For  charity. 

The  decision  of  the  Court  of  Chancery  was  cited  in  Miller  v.  Chittinden,  4  Iowa, 
252,  holding  grant  to  trustees  for  the  benefit  of  a  church  to  be  organized  valid; 
Henderson  v.  Rost,  5  La.  Ann.  441,  holding  that  a  bequest  for  charity  does  not 
fail  immediately  upon  the  death  of  testator  though  there  be  no  legatee  in  which 
it  could  vest  at  that  time:  Derby  v.  Derby,  4  R.  I.  414,  holding  bequest  "in  trust 
to  apply  the  same  to  the  relief  of  the  destitute  in  such  manner  as  charity  is 
usually  distributed  by  the  minister  at  large"  in  a  specified  city  valid;  Re  Lewis, 
33  N.  J.  Eq.  219,  on  validity  of  bequest  to  pa}-  off  debt  of  the  United  States 
incurred  during  the  War  of  the  Rebellion;  Income  Tax  Comrs.  v.  Pemsel  [1891] 
A.  C.  531,  61  L.  J.  Q.  B.  N.  S.  265,  65  L.  T.  N.  S.  621,  55  J.  P.  S05,  on  what 
constitutes  a  charitable  purpose. 
Right  of  infant  in  ventre  sa  mere. 

Cited  in  Smith  v.  McConnell,  17  111.  135,  63  Am.  Dec.  340,  holding  that  child 
in  ventre  sa  mere  at  time  of  death  of  ancestor  takes  with  other  heirs  of  the 
estate;  Cogan  v.  McC'abe,  23  Misc.  730,  52  N.  Y.  Supp.  4S,  holding  that  an  estate 
may  be  limited  upon  a  child  in  ventre  sa  mere  at  the  time  of  testator's  death ; 
State  ex  rel.  Niece  v.  Soale,  36  Ind.  App.  73,  74  N.  E.  1111,  holding  that  child 
en  ventre  sa  mere  at  the  time  of  the  death  of  its  father  caused  by  the  unlawful 
sale  of  liquor,  can,  after  its  birth,  maintain  suit  for  loss  of  its  means  of  support; 
Re  Wilmer  [1903]  1  Ch.  874,  holding  that  when  child  en  ventre  sa  mere  at  time 
of  testator's  death,  is  born  alive  the  law  treats  him  as  having  been  in  being  at 
the  time  the  will  limiting  an  estate  came  into  effect,  whether  it  is  to  the  child's 
advantage  or  to  his  disadvantage  to  be  so  treated;  Re  Burrows  [1895]  2  Ch.  497, 
65  L.  J.  Ch.  N.  S.  52,  13  Reports,  689,  73  L.  T.  N.  S.  148,  43  Week.  Rep.  683, 
holding  that  child  in  ventre  sa  mere  is  included  in  "issue  living." 

The  decision  of  the  Court  of  Chancery  was  cited  in  Hewitt  v.  Green,  77  N.  J.  Eq. 
345,  77  Atl.  25,  holding  that  phrase  "surviving  grandchild"  when  used  in  testa- 
mentary gift  to  grandchildren,  includes  any  grandchild  who  may  be  at  time  of 
death  of  testator  en  ventre  sa  mere;  Steadfast  ex  dem.  Nicoll  v.  Nicoll,  3 
Johns.  Cas.  18,  holding  that  posthumous  son  took  estate  in  remainder  devised  in 
tail  to  first  son,  in  same  manner  a?  if  he  had  been  born  in  lifetime  of  father; 
Grace  v.  Rittenberry,  14  Ga.  232,  holding  that  for  purpose  of  taking  a  bequest 
of  personal  property  a  child  in  ventre  sa  mere  at  the  death  of  the  testator  will 
be  considered  as  in  esse;  Hall  v.  Hancock,  15  Pick.  255,  26  Am.  Dec.  598,  holding 
that  child  in  ventre  sa  mere  at  time  of  death  of  testator  takes  under  devise  to 
"children  living  at  his  decease;"  Prescott  v.  Robinson,  74  N.  H.  460,  17  L.R.A. 
(N.S.)  594,  124  Am.  St.  Rep.  987,  69  Atl.  522,  on  right  of  infant  after  birth  to 
recover  for  injuries  to  it  while  in  ventre  sa  mere;  Cooper  v.  Hcatherton,  65  App. 
Div.  561,  73  N.  Y.  Supp.  14,  holding  that  a  child  in  ventre  sa  mere  is  to  be  con- 
sidered in  being  within  the  statute  governing  perpetuities;  Marsellis  v.  Thal- 
himer,  2  Paige,  35,  21  Am.  Dec.  66,  holding  that  child  in  ventre  sa  mere  is  to  be 


87  NOTES  OX  ENGLISH  RULING  CASKS.        [1   E.  E.  C.  498 

considered  in  esse  for  the  purpose  of  taking  an  estate  or  any  other  purpose  of 
benefit  to  it  if  born  alive;  Watkins  v.  Flora,  30  N.  C.  (8  Ired.  L.)  374,  holding 
that  child  in  ventre  sa  mere  is  capable  of  taking  by  descent  or  by  purchase  as 
the  "child"  or  "heir"  of  testator;  Deal  v.  Sexton,  144  N.  C.  157,  119  Am.  St.  Rep. 
943,  56  S.  E.  691,  holding  that  upon  death  of  father  the  Inheritance  to  his  lands 
will  vest  immediately  in  his  child  though  in  ventre  sa  mere;  State  v.  Atwood,  .VI 
Or.  526,  102  Pac.  295,  21  Ann.  Cas.  516,  holding  that  term  ""en  ventre  sa  mere" 
comes  clearly  within  description  "a  child  living  at  time  of  its  father's  death;" 
Pearson  v.  Carlton,  18  S.  C.  47,  holding  that  child  born  after  the  death  of  its 
father  inherits  as  heir  to  his  estate;  Wells  v.  Ritter,  3  Whart.  208,  holding  that 
devise  to  child  in  ventre  sa  mere  is  valid;  Nelson  v.  Galveston,  H.  &  S.  A.  R. 
Co.  78  Tex.  621,  11  L.R.A.  391,  22  Am.  St.  Rep.  81,  14  S.  W.  1021,  holding  that 
posthumous  child  is  one  of  "children"  who  are  given  cause  of  action  by  statute 
for  injuries  causing  death  of  father;  Villar  v.  Gilbey  [1907]  A.  C.  139,  1  B.  R.  C. 
568,  76  L.  J.  Ch.  (N.S.)  339,  96  L.  T.  N.  S.  511,  23  Times  L.  R.  392  (reversing 
[1906]  1  Ch.  583,  75  L.  J.  Ch.  (N.S.)  308,  54  Week.  Rep.  473,  94  L.  T.  N.  S.  424, 
22  Times  L.  R.  347),  holding  that  rule  of  construction  that  child  was  born  in 
lifetime  of  testator  because  it  was  at  that  time  en  ventre  sa  mere,  is  limited  to 
cases  where  construction  of  word  "born"  is  necessary  for  benefit  of  unborn  child ; 
Blackburn  v.  Stables,  2  Ves.  &  B.  367,  13  Revised  Rep.  120,  holding  that  child 
in  ventre  sa  mere  is  to  be  considered  in  being  in  matters  for  his  benefit. 
Construction  of  wills,  according-  lo  intent. 

Cited  in  Loring  v.  Sumner,  23  Pick.  98,  holding  that  however  ill  chosen  or  in- 
appropriate the  language  used  may  be,  if  the  intention  of  the  testator  can  be 
gathered  therefrom,  it  must  be  given  effect;  Covenhoven  v.  Shuler,  2  Paige, 
122,  21  Am.  Dec.  73;  Gibbons  v.  Dunn,  18  N.  C.  (1  Dev.  &  B.  L.)  446;  Hankins" 
Estate,  4  Watts  &  S.  300, — holding  that  where  not  inconsistent  with  the  rules  of 
law  the  intention  of  testator  as  gathered  from  the  entire  will  must  govern  over 
strict  grammatical  construction  and  punctuation;  Puryear  v.  Edmondson,  4 
Heisk.  43,  on  same  point. 

Cited  in  1  Beach,  Trusts,  762,  on  cy  pres  doctrine. 

The  decision  of  the  Court  of  Chancery  was  cited  in  Dulany  v.  Middleton,  72  Md. 
67,  19  Atl.  146;  Hauer  v.  Shitz,  3  Yeates,  205;  Smith  v.  Bell.  6  Pet.  68,  8  L.  ed. 
322, — holding  that  intention  of  testator  if  ascertainable  governs,  regardless  of 
strict  grammatical  construction;  Paine  v.  Guyton,  11  Humph.  402,  holding  thai 
technical  words  used  in  will  will  be  construed  according  to  their  technical  mean- 
ing unless  it  clearly  appears  from  the  whole  will  that  testator  did  not  so  intend: 
Young  v.  Kinnebrew,  36  Ala.  97;  Lasher  v.  Lasher,  13  Barb.  106, — on  same  point: 
Fuller  v.  Anderson,  20  Ont.  Rep.  424,  holding  that  under  bequest  of  personal 
property  to  "my  wife  to  have  and  to  hold  unto  her  and  the  heirs  of  her  body 
through  her  marriage  with  me"  the  wife  takes  such  personalty  absolutely  as 
against  a  posthumous  child;  Bond  v.  Moore,  236  111.  576,  19  L.R.A.  (N.S.)  540, 
86  N.  E.  386  (dissenting  opinion),  on  intention  as  gathered  from  the  whole  will, 
giving  each  word  its  common  and  natural  import,  as  governing  meaning  of  will; 
Areson  v.  Areson,  5  Hill,  410,  on  effect  and  application  of  qualifying  words  at  the 
end  of  a  sentence  in  a  will;  Carr  v.  Green,  2  M'Cord,  L.  75;  Waller  v.  Ward,  2 
Speers,  L.  786  (dissenting  opinion)  ;  Ferril  v.  Talbot,  Riley,  Eq.  247,  Bail,  Eq. 
535, — on  intention  of  testator  as  governing  construction  of  will. 
—  In  favor  of  validity. 

Cited  in  Gray,  Perpet.  2d  ed.  477,  on  construction  of  ambiguous  provision  so 
as  to  make  it  valid  within  rule  against  perpetuities. 


1  E.  R.  C.  49S]        NOTES  ON  ENGLISH  RULING  CASES.  SS 

The  decision  of  the  Court  of  Chancery  was  cited  in  Shaw  v.  Hussey,  41  Me.  495 ; 
Tappan  v.  Deblois,  45  Me.  122, — holding  that  intention  of  testator  should  be 
carried  out  if  it  can  he  done  consistently  with  the  rules  of  law;  Dubois  v.  Ray, 
35  N.  Y.  162,  33  How.  Pr.  292,  holding  that  where  will  is  capable  of  two  con- 
structions, it  is  the  duty  of  the  court  to  construe  it  so  as  to  make  it  valid  if  it 
can  be  done  in  harmony  with  rules  and  with  intent  of  testator;  Root  v.  Stuy- 
vesant,  18  Wend.  257  (dissenting  opinion),  on  same  point. 
—  Effect  of  partial  illegality. 

The  decision  of  the  Court  of  Chancery  was  cited  in  Philadelphia  v.  Girard,  45 
Pa.  9,  S4  Am.  Dec.  470,  20  Phila.  Leg.  Int.  220,  holding  that  when  a  definite  charity 
is  created  by  will,  it  will  be  carried  out  though  the  particular  mode  pointed  out 
by  testator  may  fail;  Bonard's  Will,  16  Abb.  Pr.  N.  S.  128;  Re  Philadelphia,  2 
Brewst.  (Pa.)  462;  Pell  v.  Mercer,  14  R.  I.  412, — holding  that  where  general  in- 
tent of  testator  is  clear  it  will  be  carried  out  though  some  special  direction  as  to 
the  mode  of  doing  so  may  fail;  Re  Fair,  132  Cal.  523,  84  Am.  St.  Rep.  70, 
60  Pac.  442;  Franklin's  Succession,  7  La.  Ann.  395  (dissenting  opinion)  ;  Bart- 
let  v.  King,  12  Mass.  537,  7  Am.  Dec.  99, — on  same  point;  Dunlop  v.  Harrison, 
14  Gratt.  251;  Inglis  v.  Sailor's  Snug  Harbor,  3  Pet.  99,  7  L.  ed.  617,— holding 
that  where  intention  as  expressed  in  will  is  not  inconsistent  with  the  rules  of 
law  it  should  be  given  efl'ect  though  the  particular  mode  pointed  out  by  testator 
is  illegal;  Whateley  v.  Whateley,  14  Grant,  Ch.  (U.  C.)  430;  Viger  v.  Pothier, 
Stuart,  L.  C.  Rep.  394, — on  same  point;  Christian  v.  Christian,  3  Port.  (Ala.) 
350,  on  intention  of  testator  being  given  effect  as  far  as  it  can  though  it  cannot 
take   effect    to    its    full    extent. 

The  decision  of  the  Court  of  Chancery  was  distinguished  in  Shepperd  v.  Fisher, 
206  Mo.  208,  103  S.  W.  989,  holding  that  where  valid  and  invalid  provisions  in 
will  are  part  of  a  general  plan  of  distribution  of  property,  the  valid  provisions 
will  fall  with  the  invalid. 
Right  to  have  will  construed. 

The  decision  of  the  Court  of  Chancery  was  cited  in  Hamcrsley's  Estate,  9  N. 
Y.  Civ.  Proc.  Rep.  293,  on  interest  necessary  to  right  to  have  validity  of  provision 
in  will  jjassed  upon  by  the  court. 
Effect  of  appeal. 

The  decision  of  the  Court  of  Chancery  was  disapproved  in  Green  v.  Winter,  1 
Johns.  Ch.  77,  holding  that  an  appeal  stays  proceedings  in  the  lower  court. 

1  E.  R.  C.  514,  SOUTHAMPTON  v.  HERTFORD,  2  Ves.  &  B.  54,  13  Revised  Rep. 

18. 
Validity  of  trusts  for  accumulation. 

Cited  in  Philadelphia  v.  Girard,  45  Pa.  9,  84  Am.  Dec.  470,  holding  that  where 
a  vested  estate  is  given  by  will  it  is  not  defeated  though  a  trust  for  accumula- 
tion is  annexed  to  it  which  is  void;  Harrison  v.  Spencer,  15  Ont.  Rep.  692,  hold- 
ing that  law  in  Canada  as  to  accumulations  is  same  as  it  was  in  England  before 
passage  of  act  called  Thelluson  Act,  39-40  Geo.  III.  Ch.  9;  Tewart  v.  Lawson,  L. 
R.  18  Eq.  490,  43  L.  J.  Ch.  N.  S.  673,  22  Week.  Rep.  822,  holding  trust  for  ac- 
cumulation of  rents  and  profits  for  the  payment  of  debts  to  be  valid;  Turvin  v. 
Newcome,  3  Kay  &  J.  16,  3  Jur.  N.  S.  203,  5  Week.  Rep.  35,  he' ding  trust  for 
accumulation  during  possible  minority  of  successive  heirs  in  tail  of  the  estate  to 
be  void;  Browne  v.  Stoughton,  14  Sim.  369,  holding  that  trust  for  accumulation 
which  may  by  possibility  go  on  without  limit,  is  wholly  void;   Smith  v.  Cuning- 


89  NOTES  ON  ENGLISH    RULING   CASES.        [1    E.   R.  C.  52] 

hame,  Ir.  L.  R.  13  Eq.  480,  holding  that  a  trust  for  accumulation,  void  because 
involving  a  perpetuity,  cannot  be  cut  down,  and  held  valid  to  the  legal  extent. 

Cited  in  note  in  1  E.  R.  C.  518,  on  invalidity  of  trust  for  accumulation  beyond 
period  allowed  by  law. 

Cited  in  Gray,  Perpet.  2d  ed.  3GS,  on  invalidity  of  limitation  after  estate  tail; 
Gray,  Perpet.  2d  ed.  501,  502,  on  validity  as  against  objection  of  remoteness  of 
provision  for  accumulations;   Underhill,  Am.  Ed.  Trusts,  68,  on  legality  of  ex- 
pressed object  of  trust. 
Effect  of  invalid  suspension  of  power  of  alienation. 

Cited  in  Hawley  v.  James,  16  Wend.  61,  holding  that  where  estate  in  remainder 
was  void  for  suspension  of  alienation  contrary  to  statute,  all  the  life  estates 
and  contingent  remainders  dependent  thereon  were  also  void;  Craig  v.  Hone,  2 
Edw.  Ch.  554,  holding  that  trust  in  personal  property,  void  because  of  suspension 
of  alienation,  cannot  be  given  effect  for  any  purpose,  though  the  conditions  un- 
duly extending  the  time  might  never  arise;  Philadelphia  v.  Girard,  20  Phila.  Leg. 
Int.  220,  holding  that  vested  estate  is  not  void  because  illegal  restrictions  or  re- 
straints are  annexed  to  it,  such  restraints  as  conditions  only  being  void;  Ker 
v.  Dungannon,  1  Drury  &  War.  509,  1  Connor  &  L.  335,  4  Ir.  Eq.  Rep.  343,  hold- 
ing that  where  provisions  void  for  remoteness  are  included  in  the  same  descrip- 
tion as  valid  ones,  all  must  fail. 

Cited  in  note  in  20  L.R.A.  515,  on  effect  on  prior  takers  of  failure  of  gift 
because  of  remoteness. 

Cited  in  Gray,  Perpet.  2d  ed.  500,  on  right  of  unborn  or  unascertained  person 
to  take  accumulations  after  birth  or  ascertainment. 

1  E.  R.  C.  521,  ASHBY  v.  WHITE,  1  Bro.  P.  C.  62,  Holt,  524,  2  Ld.  Raym.  938,  14 
How.  St.  Tr.  695,  1  Salk.  19,  3  Salk.  17,  1  Smith  Lead.  Cas.  11th  ed.  240,  8 
St.  Tr.  89,  3  L.  Raym.  320,  6  Mod.  45. 

Right  to  vote. 

Cited  in  Anderson  v.  Baker,  23  Md.  531;  Blair  v.  Ridgely,  41  Mo.  63,  97  Am. 
Dec.  248, — holding  that  the  right  to  vote  is  not  a  natural  right  but  is  subject  to 
limitations  prescribed  by  statute;  Primary  Election  Case,  80  Misc.  617,  32  So. 
286,  on  right  of  suffrage  as  resting  upon  as  secure  basis  as  the  right  of  life, 
liberty  and  property;  White  v.  Multnomah  County,  13  Or.  317,  57  Am.  Rep.  20, 
10  Pac.  484,  on  the  important  nature  of  a  man's  right  to  vote. 

—  Actionable  denial  of. 

Cited  in  Morris  v.  Colorado  Midland  R.  Co.  48  Colo.  147,  31  L.R.A.  (N.S.) 
1106,  139  Am.  St.  Rep.  268,  109  Pac.  430,  20  Ann.  Cas.  1006,  holding  that  carrier 
is  not  liable  for  so  negligently  operating  its  train  that  passenger  does  not  reach 
his  destination  in  time  to  be  able  to  vote  at  general  election ;  Swift  v.  Chamber- 
lain, 3  Conn.  537,  holding  that  action  on  the  case  will  lie  against  one  who  ma- 
liciously prevents  another  from  exercising  his  right  to  vote;  Com.  ex  rel.  Grier  v. 
Coxe,  1  Leg.  Chron.  R.  89,  holding  that  mandamus  is  proper  remedy  to  com- 
pel inspectors  to  receive  and  count  votes  by  proxy  of  policyholders  of  corporation ; 
Fausler  v.  Parsons,  6  W.  Va.  4S6,  20  Am.  Rep.  43  i,  holding  that  contestant  must 
show,  in  petition  or  notice  of  grounds  of  contest,  by  direct  averments  what  was 
result  of  election  as  declared  by  returning  officers;  Crawford  v.  St.  John,  34  N. 
B.  560,  holding  that  action  will  lie  against  a  city  for  the  acts  of  its  officers  in 
depriving  an  elector  of  the  exercise  of  his  right  to  vote;  Dartmouth  College  v. 
Woodward,  4  Wheat.  518,  4  L.  ed.  029,  on  recompense  in  damages  for  obstruc- 
tion of  exercise  of  right  to  vote;  Curry  v.  Cabliss,  37  Mo.  330,  holding  that  peti- 


1  E.  It.  C.  521]        NOTES  ON  ENGLISH  RULING  CASES.  90 

tion  in  suit  against  judges  for  wrongfully  refusing  plaintiff's  vote,  must  set  out 
facts  which  show  his  cause  of  action,  and  how  he  was  entitled  to  vote,  by  giving 
qualifications. 

Cited  in  note  in  31  L.R.A.  (N.S.)  1106,  on  right  to  damages  for  being  prevented 
from  voting. 
Right  of  action   against   election  officers. 

Cited  in  Lane  v.  Mitchell,  153  Iowa,  139,  36  L.R.A.  (N.S.)  968,  133  N.  W.  381, 
Ann.  Cas.  191 3D,  1243,  holding  that  recovery  by  voter  whose  ballet  is  wilfully 
and  maliciously  rejected,  against  election  officers,  is  not  limited  to  nominal  dam- 
ages; Chrisman  v.  Bruce,  1  Duv.  63,  85  Am.  Dec.  603,  holding  that  action  may 
be  maintained  against  judge  of  election  for  unlawfully  refusing  to  receive  vote 
of  qualified  voter;  Hanlon  v.  Partridge,  69  N.  H.  SS,  44  Atl.  807,  holding  election 
officers  liable  to  civil  action  for  wilfully  and  maliciously  depriving  an  elector  of 
his  right  to  vote;  Goetcheus  v.  Matthewson,  61  N.  Y.  420,  holding  election  in- 
spectors liable  in  civil  action  for  rejecting  a  vote  on  a  ground  not  within  their 
statutory  authority;  Lincoln  v.  Hapgood,  11  Mass.  350;  Jeffries  v.  Ankeny,  11 
Ohio,  372, — holding  that  action  lies  against  election  officers  for  refusing  a  legal 
vote  without  proof  of  malice;  Bevard  v.  Hoffman,  18  Md.  479,  81  Am.  Dec.  618; 
Wheeler  v.  Patterson,  1  N.  H.  88,  8  Am.  Dec.  41;  Jenkins  v.  Waldron,  11  Johns. 
114,  6  Am.  Dee.  359;  Moran  v.  Rennard,  27  Phila.  Leg.  Int.  30,  3  Brewst.  (Pa.) 
601, — holding  election  officer  not  liable  in  damages  for  rejecting  a  legal  note  in 
the  absence  of  proof  of  dishonesty  or  malice;  YYeckerly  v.  Geyer,  11  Serg.  &  R. 
35;  Keenan  v.  Cook,  12  R.  I.  52, — holding  election  officers  not  liable  for  refusing 
to  place  name  on  voting  list  in  the  absence  of  a  showing  that  they  acted  dis- 
honestly or  maliciously;  United  States  ex  rel.  Langley  v.  Bowen,  6  D.  C.  196; 
Patterson  v.  D'Autrive.  9  La.  Ann.  35  (dissenting  opinion)  ;  Metz  v.  Maddox,  121 
App.  Div.  147,  105  N.  Y.  Supp.  702  (dissenting  opinion), — on  liability  of  election 
officers  to  civil  actions  for  damages  for  not  permitting  a  legal  voter  to  cast  his 
vote;  Ferguson  v.  Allen,  7  Utah,  263,  26  Pac.  570,  on  elector's  right  of  action 
against  election  officers,  where  not  permitted  to  cast  his  ballot;  Anderson  v. 
Hicks,  35  N.  S.  161,  holding  that  in  order  to  make  election  officer  liable  for  re- 
fusing to  receive  vote,  malice  must  be  shown;  Reg.  v.  Prudhomme,  4  Manitoba 
L.  Rep.  259,  on  power  of  courts  to  interfere  with  conduct  of  election  in  absence 
of  statutory  authority;  McLeod  v.  Noble,  28  Ont.  Rep.  528,  holding  that  high 
court  of  justice  had  no  jurisdiction  to  enjoin  prosecution  of  proceedings  connected 
with  controverted  elections  such  as  recount  under  statute. 

Cited  in  note  in  11  L.R.A.  (N.S.)  502,  on  personal  liability  of  election  officer  for 
rejecting  ballots. 

Cited  in  1  Dillon,  liun.  Corp.  5th  ed.  774,  on  personal  liability  of  election 
officers  for  refusing  to  receive  vote;  2  Kinkead,  Torts,  991,  on  liability  of  election 
officers  for  denying  right  of  suffrage. 

Disapproved  in  Anderson  v.   Baker,  23   Md.  531,  holding  that  no  civil  action 
would  lie  against  election  officers  refusing  an  elector  the  right  to  vote. 
Actionable  wrongs  by  officers. 

Cited  in  Valentine  v.  Englewood,  76  N.  J.  L.  509,  19  L.R.A. (N.S.)  262,  71  Atl. 
344,  16  Ann.  Cas.  731,  holding  that  members  of  health  board  acting  in  good  faith 
are  not  personally  liable  for  damages  arising  out  of  their  acts  in  establishing 
quarantine;  Strong  v.  Campbell,  11  Barb.  135,  holding  that  no  action  lies  in  be- 
half of  newspaper  publisher  against  postmaster  for  breach  of  duty  in  refusing 
to  receive  proofs  in  regard  to  circulation  of  paper  and  give  to  him  list 
of  undelivered  letters  for  publication  according  to  act  of  congress;  People  v.  Nor- 


91  NOTES  ON  ENGLISH  RULING   CASKS.        [1  E.  R.  C.  52] 

ton,  7  Barb.  477,  to  the  point  that  rule  that  judge  is  not  indictable  for  error 
in  judgment  extended  at  common  law  only  to  judges  in  courts  of  record  and  not 
to  ministerial  officers;  Raynsford  v.  Phelps,  43  Mich.  342,  38  Am.  Rep.  189,  5  N. 
W.  403,  holding  that  one  who  has  equity  of  redemption  from  mortgage  foreclosure, 
may  maintain  action  against  tax  collector,  where  he  is  compelled  to  redeem  from 
tax  sale  on  account  of  his  failure  to  levy  on  personal  property  for  the  tax: 
Brown  v.  Maplewood  Cemetery  Asso.  85  Minn.  498,  S9  N.  W.  872,  holding  that  lot 
owners  may  maintain  equitable  action  to  compel  members  of  cemetery  association 
to  restore  moneys  appropriated  by  them  to  the  treasury  for  the  proper  care  of 
such  cemetery;  Tompkins  v.  Sands,  8  Wend.  462,  24  Am.  Dec.  46,  holding  that 
action  lies  against  a  justice  of  the  peace  who  wilfully  and  maliciously  refuses  to 
approve  the  surety  in  an  appeal  bond;  Dynes  v.  Hoover,  20  How.  65,  15  L.  ed.  838, 
holding  that  civil  action  for  false  imprisonment  will  not  lie  against  officer  execut- 
ing the  judgment  of  a  court  having  jurisdiction  over  the  subject-matter;  Harris 
v.  Willard,  Smith  (N.  H.)  63,  holding  town  officers  not  liable  to  purchasers  of  tax 
title  which  proves  to  be  invalid  for  errors  in  the  assessment,  in  the  absence  of 
fraud,  malice  or  wilful  neglect;  Cunningham  v.  Bucklin,  8  Cow.  178,  18  Am.  Dec. 
432,  holding  that  commissioner  acting  judicially  is  not  liable  in  civil  action 
though  he  act  corruptly  and  damage  is  caused  thereby;  Garland  v.  Davis,  4  How. 
131,  11  L.  ed.  915,  on  liability  of  nonjudicial  officers  for  misfeasance  in  matters 
in  which  they  have  no  discretion;  Schonwald  v.  Ragains,  32  Okla.  223,  39  L.R.A. 
(N.S.)  854,  122  Pac.  203,  holding  that  it  is  actionable  tort  for  one  to  malicious- 
ly interfere  with  contract  between  two  parties  and  induce  one  of  them  to  break 
contract  to  other's  injury. 

Cited  in  note  in  15  Eng.  Rul.  Cas.  53,  on  civil  liability  of  judges. 

Cited  in  1  Cooley,  Torts,  3d  ed.  801,  on  immunity  of  judicial  officers  from 
private  suits. 

Distinguished  in  South  v.  Maryland,  18  How.  396,  15  L.  ed.  435,  holding  sheriff 
not  liable  to  civil  action  for  failure  or  neglect  to  preserve  the  peace  and  protect 
private  property  from  injury  from  mob  violence;  State  use  of  Cocking  v.  Wade, 
87  Md.  529,  40  L.R.A.  628,  40  Atl.  104,  holding  sheriff  not  liable  to  civil  action 
for  failure  to  prevent  lynching  of  prisoner  by  mob;  Butler  v.  Kent,  19  Johns. 
223,  10  Am.  Dec.  219,  holding  that  agent  having  lottery  tickets  for  sale  cannot 
maintain  action  against  managers  of  public  lottery  for  mismanagement  of  its 
affairs  through  which  he  lost  the  sale  of  his  tickets  for  want  of  purchasers. 
Actionable  right  generally. 

Cited  in  Howard  College  v.  Turner,  71  Ala.  429,  46  Am.  Rep.  326,  holding  that 
action  lies  for  breach  of  obligation  contained  in  certificate  of  permanent  scholar- 
ship issued  by  trustees  of  college  in  consideration  of  money  paid;  McKennan  v. 
Bodine,  6  Phila.  5S2,  25  Phila.  Leg.  Int.  109,  holding  that  inspector  of  flour  is 
liable  in  action  on  case  for  negligence  to  person  injured  by  his  negligent  in- 
spection; Foley  v.  Phelps,  1  App.  Div.  551,  37  N.  Y.  Supp.  471,  holding  that  sur- 
viving wife  has  right  of  action  against  person  who  wantonly  or  unlawfully  muti- 
lates husband's  body  before  burial;  Maia  v.  Eastern  State  Hospital,  97  Va.  507, 
47  L.R.A.  577,  34  S.  E.  617,  holding  that  public  hospital  is  not  liable  for  injury 
to  inmate  occasioned  by  negligence  of  persons  in  charge  of  hospital:  Lamb  v. 
Stone,  11  Pick.  527,  holding  that  action  on  case  for  fraud  of  defendant  in  pur- 
chasing personal  property  of  plaintiff's  debtor  and  aiding  debtor  to  abscond,  can- 
not be  sustained;  Garing  v.  Fraser,  76  Me.  37,  holding  that  at  common  law  action 
does  not  lie  against  witness  for  perjury;  Kestler  v.  Kern,  2  Ind.  App.  488,  28 
N.  E.  726,  holding  that  resident  of  this  state  who  assigns  his  claim  without  con- 


1  E.  R.  C.  521]        NOTES  ON  ENGLISH  RULING  CASES.  92 

sideration  against  employee  of  interstate  railroad  to  resident  of  another  state  for 
purpose  of  avoiding  exemption  laws  of  this  state  is  liable  in  damages  to  debtor, 
where  assignee  attached  earnings  in  other  state;  Talbot  Paving  Co.  v.  Detroit, 
109  Mich.  657,  63  Am.  St.  Rep.  604,  67  N.  W.  979,  holding  that  fact  that  munici- 
pal contract  is  awarded  to  one  other  than  lowest  bidder  thereon  does  not  give 
latter  right  of  action  to  recover  profits  which  he  might  have  made;  Venard  v. 
Cross,  8  Kan.  248,  holding  that  individual  sustaining  injury  from  public  nuisance 
differing  in  kind  from  that  sustained  by  community  in  general,  may  maintain  ac- 
tion therefor;  Like  v.  McKinstry,  41  Barb.  186,  holding  that  action  lies  for  dam- 
ages for  slander  of  title  to  personal  property;  Clark  v.  Harlan,  1  Cin.  Sup.  Ct. 
Rep.  418,  holding  that  wife  may  maintain  action  against  a  third  person  for  en- 
ticing away  and  harboring  her  husband;  Heacock  v.  Heacock,  108  Iowa,  540,  75 
Am.  St.  Rep.  273,  79  N.  W.  353,  holding  that  wife  cannot  sue  her  husband  on  his 
personal  contract;  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  420,  9  L.  ed. 
773  (dissenting  opinion),  on  right  of  action  where  one  is  forcibly  prevented  from 
crossing  a  toll  bridge;  Mohler's  Appeal,  8  Pa.  26,  holding  that  where  annuity  is 
charged  on  land  devised,  right  of  action  arises  against  alienee  of  devisee  for 
arrears  accruing  during  continuance  of  estate;  Canadian  P.  R.  Co.  v.  McBryan, 
5  B.  C.  187,  on  right  of  action  as  arising  from  construction  of  dam  on  water 
course,  merely  because  it  might  be  injurious  to  proprietor  higher  up;  Bowen  v. 
Hall,  1  E.  R.  C.  717,  L.  R.  6  Q.  B.  Div.  333,  50  L.  J.  Q.  B.  N.  S.  305,  holding  that 
action  on  case  will  lie  against  persons  for  enticing  away  servant  from  his  em- 
ployer. 

Cited  in  notes  in  62  L.R.A.  720,  on  effect  of  bad  motive  to  make  actionable  what 
would  otherwise  not  be;  1  Eng.  Rul.  Cas.  555,  on  right  of  action  of  member  to 
class  not  specially  injured  for  infringement  of  right  belonging  to  such  class: 
25  E.  R.  C.  81,  on  liability  for  wilfully  and  intentionally  harming  another  in 
exercise  of  a  legal  right. 

Cited  in  2  Washburn,  Real  Prop.  6th  ed.  348,  on  remedies  for  obstructions  to 
easements;  1  Cooley,  Torts,  3d  cd.  154,  on  private  right  of  action  for  public 
nuisance. 

Distinguished  in  Kennedy  v.  Ray,  22  Barb.  511,  holding  that  action  will  not  lie 
against  school  district  librarian  for  refusal  to  allow  a  resident  and  his  children 
access  to  the  library  or  permission  to  take  books  therefrom  in  the  absence  of  any 
rules  governing  such  use;  Dufiies  v.  Duffies,  76  Wis.  374,  8  L.R.A.  420,  20  Am.  St. 
Rep.  79,  45  N.  W.  522,  holding  that  wife  cannot  maintain  an  action  for  the  loss  of 
the  society  and  support  of  her  husband  against  one  enticing  him  away. 
—  Necessity  of  showing  actual   damage. 

Cited  in  Holler  v.  Weiner,  15  Pa.  242,  holding  that  action  lies  for  breach  of  con- 
tract by  foreign  house  that  person  should  act  as  its  agent  here;  Webb  v.  Portland 
Mfg.  Co.  3  Sumn.  189,  Fed.  Cas.  No.  17,322;  Searles  v.  Cronk,  38  How.  Pr.  320; 
Allaire  v.  Whitney,  1  Hill,  484;  Seneca  Road  Co.  v.  Auburn  &  R.  R.  Co.  5  Hill, 
170;  Collins  v.  St.  Peters,  65  Vt.  61S,  27  Atl.  425,— holding  that  plaintiff  need 
not  show  actual  damages  to  entitle  him  to  maintain  action  for  an  invasion  of  his 
rights;  Hastings  v.  Livermore,  7  Gray,  194;  Eller  v.  Carolina  &  N.  W.  R.  Co.  140 
N.  C.  140,  3  L.R.A.  (N.S.)  225,  52  S.  E.  305,  6  Ann.  Cas.  40,— on  same  point; 
Baltimore  &  O.  R.  Co.  v.  Boyd,  67  Md.  32,  1  Am.  St.  Rep.  362,  10  Atl.  315; 
Whittaker  v.  Stangvick,  100  Minn.  3S6,  10  L.R.A.(N.S.)  921,  117  Am.  St.  Rep. 
703,  111  N.  W.  295,  10  Ann.  Cas.  528,— holding  that  extent  of  damage  is  imma- 
terial to  right  of  action  for  trespass  to  land;  McDonald  v.  English,  85  111.  232, 
holding  that  where  obstruction  in  street  is  public  offense  and  special  injury  there- 


93  NOTES  ON  ENGLISH    RULING  CASKS.       [1.  K.   It.  c.  521 

by  results  to  person,  latter  may  maintain  action  against  wrongdoer;  Moore  v. 
Linneman,  143  Kv.  231,  136  S.  W.  232,  holding  that  nominal  damages  arc  always 
recoverable  in  breaches  of  contract  and  generally  in  tort,  even  though  no  actual 
damages  be  proved;  Paterson  v.  East  Jersey  Water  Co.  74  N.  .1.  Eq.  41),  70  Atl. 
472,  holding  that  complainant  as  preliminary  condition  for  equitable  relief,  will 
not  be  required  to  bring  action  at  law  to  establish  title  and  damage:  llendrick  v. 
Cook,  4  Ga.  241,  holding  that  riparian  owner  may  maintain  action  of  trespass 
against  one  backing  the  water  in  a  stream  by  means  of  a  dam,  without  showing 
actual  damage:  Parker  v.  Griswold,  17  Conn.  288,  42  Am.  Dec.  739;  Plumleigh 
v.  Dawson,  6  111.  544,  41  Am.  Dec.  199, — holding  that  action  will  lie  for  the 
diversion  of  a  water  course  without  a  showing  of  actual  damage:  Lux  v.  Haggin, 
09  Cal.  255,  10  Pac.  074,  on  same  point:  Brent  v.  Kimball,  GO  111.  211,  14  Am.  Rep. 
35.  holding  that  plaintiff  need  not  prove  pecuniary  value  to  entitle  him  to  at 
least  nominal  damages  for  the  killing  of  his  dog:  Deverdorf  v.  Wert,  42  Barb. 
227.  holding  that  plaintiff  is  entitled  to  nominal  damages  for  the  breach  of  a 
contract  where  no  actual  loss  resulted;  Moore  v.  New  York  Elev.  R.  Co. 
30  Abb.  N.  C.  306;  Searles  v.  Cronk,  38  How.  Pr.  320,— holding  that  a  viola- 
tion of  a  legal  right  imports  at  least  nominal  damages;  Fullam  v.  Stearns,  30  Vt. 
443,  holding  that  every  violation  of  a  right  imports  some  damage  and  maxim  "de 
minimis  non  curat  lex"  applies  to  the  injury  not  to  the  resulting  damage;  Gold- 
smith v.  Joy,  61  Vt.  488,  4  L.R.A.  500,  15  Am.  St.  Rep.  923,  17  Atl.  1010,  as  illus- 
trating that  action  will  lie  for  any  invasion  of  a  right  regardless  of  actual  dam- 
age; Thrall  v.  Knapp,  17  Iowa.  468,  on  legal  remedy  as  being  available  for  every 
assault  however  slight. 

Distinguished  in  Irwin  v.  Cook,  24  Tex.  244,  holding  that  nominal  damages  only 
are  recoverable  as  a  matter  of  right  in  an  action  for  slander  where  no  actual  dam- 
age was  alleged  or  proven. 
Co-existence    of    right    and    remedy. 

Cited  in  Bond  v.  Hilton,  47  N.  C.  (2  Jones,  L.)  149,  holding  that  for  every 
breach  of  duty  arising  out  of  contract,  law*  awards  some  damages;  Pierce  v.  Swan 
Point  Cemetery,  10  R.  I.  227,  14  Am.  Rep.  667,  4  Legal  Gaz.  265,  to  the  point 
that  if  person  has  right,  he  must  of  necessity  have  means  to  vindicate  and  main- 
tain it;  White  v.  Nashville  &  N.  R.  Co.  7  Heisk.  518,  holding  that  where  no 
remedy  for  a  wrong  is  available  at  law  equity  will  grant  a  remedy ;  Hale  v. 
Hardon,  37  C.  C.  A.  240,  95  Fed.  747;  Ensor  v.  Bolgiano,  67  Md.  190,  9  Atl.  529 
(dissenting  opinion)  ;  Rich  v.  1  landers,  39  N.  H.  304  (dissenting  opinion)  ;  Par- 
sons v.  Crabb,  31  U.  C.  Q.  B.  434;  Edes  v.  Boardman,  58  N.  H.  580, — on  there 
being  a  remedy  for  every  legal  right,  want  of  remedy  and  want  of  right  being 
reciprocal;  United  States  v.  New  Bedford  Bridge,  1  Woodb.  &  M.  401,  Fed.  Cas. 
No.  1 5,867:  Riley  v.  Carter,  76  Md.  581,  19  L.R.A.  489,  35  Am.  St.  Rep.  443,  25 
Atl.  667;  Gage  v.  Gage,  66  N.  H.  282,  28  L.R.A.  829,  29  Atl.  543  (dissenting  opin- 
ion) ;  People  ex  rel.  Pells  v.  Ulster  County,  65  N.  Y.  300  (dissenting  opinion), — 
on  remedy  for  every  right. 

Cited,  in  note  in  1  Eng.  Rul.  Cas.  527,  529,  531,  533,  on  right  of  action  arising 
from  every  injury. 

Cited  in  1  Cooley,  Torts,  3d  ed.  23,  24,  on  wrong  being  without  a  remedy;  1 
Cooley,  Torts,  3d  ed.  84,  85,  on  concurrence  of  wrong  and  damage  as  essential 
to  tort:  Joyce,  Nuis.  68,  on  allowance  of  nominal  damages  only  although  right 
and  invasion  thereof  are  both  clear. 

Distinguished  in  Campbell  v.  Rogers,  2  Handy  (Ohio)  110,  holding  that  rule 
that  "where  there  is  a  right  there  is  a  remedy"  is  applicable  only  to  legal  rights. 


1  E.  R.  C.  521]        NOTES  ON  ENGLISH  RULING  CASES.  94 

—  To  enforce  right  given  by   statute. 

Cited  in  Eisenhauer  v.  Dill,  6  Ind.  App.  188,  33  N.  E.  220,  to  the  point  that  if 
statute  gives  right  common  law  will  give  remedy  to  maintain  that  right;  Col- 
lins v.  O'Laverty,  136  Cal.  31,  G8  Pac.  327,  holding  that  where  a  right  and  duty 
is  imposed  by  statute  a  right  of  action  commensurate  therewith  also  exists; 
Vandeventer  v.  New  York  &  N.  H.  R.  Co.  27  Barb.  244;  Whitford  v.  Panama  R. 
Co.  23  N.  Y.  465, — holding  that  statutes  giving  action  for  damages  resulting  from 
death  caused  by  negligence,  do  not  apply  where  injury  is  not  committed  in  state, 
but  in  foreign  country;  Stearns  v.  Atlantic  &  St.  L.  R.  Co.  46  Me.  95;  Graves  v. 
Briggs,  6  Abb.  N.  C.  38, — holding  that  where  a  statute  confers  a  right  it  implied- 
ly gives  a  remedy  to  enforce  it;  Re  Niagara  Election  Case,  29  U.  C.  C.  P.  270; 
Wooten  v.  Gwin,  56  Miss.  422  (dissenting  opinion), — on  same  point;  Willis  v. 
Mabon  (Willis  v.  St.  Paul  Sanitation  Co.)  48  Minn.  140,  16  L.R.A.  281,  31  Am. 
St.  Rep.  626,  50  N.  W.  1110;  Campbell  v.  Rogers,  2  Handy  (Ohio)  110,— holding 
that  action  cannot  be  maintained  by  administrator  of  deceased  person  under  sec- 
tion 6134  Revised  Statutes,  requiring  compensation  for  causing  death  by  wrong- 
ful act,  when  act  causing  death  occurred  outside  state;  Johnson  v.  Parkersburg, 
16  W.  Va.  402,  37  Am.  Rep.  779,  holding  that  action  will  lie  to  enforce  a  right 
conferred  by  the  constitution  though  no  remedy  to  enforce  it  is  provided  by  the 
constitution  or  by  statute;  Moore  v.  Barry,  30  S.  C.  530,  4  L.R.A.  294,  9  S.  E. 
589,  holding  petitioning  land  owners  liable  for  work  done  by  order  of  county  com- 
missioners pursuant  to  petition  where  statutory  provision  for  payment  thereof 
failed  and  statute  provided  no  other  mode  of  recovery  for  the  labor;  Long  v. 
Long,  1  Watts,  265,  holding  that  where  law  confers  right,  it  will  afford  remedy  by 
action  of  some  kind,  and  it  is  duty  of  court  to  adopt  suitable  remedy. 

Cited  in  note  in  1  Eng.  Rul.  Cas.  684,  on  right  of  action  to  recover  pecuniary 
obligation  created  by  statute  directing  ascertainment  of  amount  due  in  a  pre- 
scribed summary  manner. 

—  Novelty  of  the  action. 

Cited  in  People  v.  Richards,  67  Cal.  412,  56  Am.  Rep.  716,  7  Pac.  828,  6  Am. 
Crim.  Rep.  112,  holding  that  when  case  is  new  in  instance,  hut  not  new  in  prin- 
ciple, mere  failure  to  discover  precedent  in  which  principle  was  applied  is  of  little 
weight;  Smart  v.  Aroostook  Lumber  Co.  103  Me.  37,  14  L.R.A.  (N.S.)  1083,  68 
Atl.  527,  on  multiplication  of  actions  to  meet  necessity  where  men  multiply  in- 
juries; Johnson  v.  Girdwood,  7  Misc.  651,  28  N.  Y.  Supp.  151,  holding  that  the 
law  affords  a  remedy  to  one  wrongfully  injured  in  his  good  name  or  person,  re- 
gardless of  precedents  for  the  action;  Lacaze  v.  State,  Addison  (Pa.)  59,  holding 
that  action  on  bond  given  in  court  of  admiralty  will  lie  in  courts  of  common  law, 
even  though  no  precedent  can  be  found  for  such  action;  Carrington  v.  Carson,  1 
N.  C.  pt.  2,  p.  216,  on  failure  to  find  report  of  similar  action  as  argument  that 
no  such  action  can  be  maintained. 
Judicial  and  ministerial  acts. 

Cited  in  Re  Massey  Mfg.  Co.  11  Ont.  Rep.  444,  holding  that  action  of  provincial 
secretary  in  issuing,  for  publication,  notice  of  increase  of  stock  of  corporation 
is  ministerial. 

—  Election  acts. 

Cited  in  People  ex  rel.  Smith  v.  Pease,  27  N.  Y.  45,  84  Am.  Dec.  242;  People 
ex  rel.  Smith  v.  Pease,  30  Barb.  588, — holding  that  election  inspectors,  in  receiv- 
ing the  ballots   and  counting  the  votes  act  ministerially. 


95  NOTES  ON  ENGLISH  RULING  CASES.        [1   E.  R.  C.  533 

Opinions  based  on  different  reasons. 

Cited  in  Pollock  v.  C.  Hennicke  Co.  64  Ark.  180,  4G  S.  W.  185,  holding  that 
where  a  majority  of  the  court  agree  that  a  judgment  should  be  affirmed,  though 
they  differ  as  to  the  reasons  therefor,  it  will  be  affirmed;  Gilford  v.  Livingston, 
2  Denio,  380,  on  differences  in  reasons  for  a  judgment  as  not  being  a  difference 
of  opinion. 
Jurisdiction  of  courts  over  matters  concerning  Parliament. 

Cited  in  Reg.  v.  Bunting,  7  Ont.  Rep.  524,  on  jurisdiction  of  courts  over  prosi 
cution  for  conspiracy  to  bribe  members  of  parliament. 

1  E.  R.  C.  533,  SCOTT  v.  SEYMOUR,  1  Hurlst.  &  C.  219,  1    New   Reports,   129, 
9  Jur.  N.  S.  522,  8  L.  T.  N.  S.  511,  11  Week.  Rep.  169,  32  L.  J.  Exch.  N.  S.  61. 
affirming  the  decision  of  the  Court  of  Exchequer,   reported   in  8  Jur.  N.  S. 
568,  6  L.  T.  N.  S.  607,  10  Week.  Rep.  739,  31  L.  J.  Exch.  N.  S.  457. 
Right  of  action  for  cause  arising  in  foreign  jurisdiction. 

Cited  in  Fisher  v.  Fielding,  67  Conn.  91,  32  L.R.A.  236,  52  Am.  St.  Rep.  270, 
34  Atl.  714  (dissenting  opinion),  on  transactions  arising  in  foreign  jurisdictions 
being  enforceable  in  the  local  courts  where  not  illegal  under  laws  of  either ; 
O'Reilly  v.  New  York  &  N.  E.  R.  Co.  16  R.  I.  3S8,  6  L.R.A.  719,  19  Atl.  244, 
holding  that  right  of  action  created  by  statute  in  one  state  is  enforceable  in  an- 
other only  when  the  two  states  have  statutes  on  the  subject  which  are  substantial- 
ly similar;  Slater  v.  Mexican  Nat.  R.  Co.  194  U.  S.  120,  4S  L.  ed.  900,  24  Sup. 
Ct.  Rep.  5S1  (dissenting  opinion),  on  right  to  maintain  action  for  death  by 
wrongful  act  occurring  in  foreign  jurisdiction;  Stuart  v.  Baldwin,  41  U.  C.  Q. 
B.  446,  holding  that  title  to  ore  taken  from  land  in  Quebec  may  be  tried  in 
Ontario  though  action  could  not  be  maintained  for  such  purpose  in  Quebec  until 
title  to  the  lands  from  which  it  was  taken,  had  been  adjudicated;  Dupont  v.  Que- 
bec S.  S.  Co.  Rap.  Jud.  Quebec  11  S.  C.  188,  sustaining  right  of  action,  governed 
by  the  laws  of  Quebec,  where  a  resident  thereof  was  injured  while  loading  a  ship 
upon  which  he  was  employed  at  a  foreign  port;  Smith  v.  Smith,  25  Grant,  Ch. 
(U.  C.)  317,  on  jurisdiction  of  courts  of  one  state  over  cause  of  action  for  death 
by  wrongful  act  occurring  in  another  state;  Toponce  v.  Martin,  38  U.  C.  Q  B. 
411,  on  right  to  invoke  a  civil  remedy  in  a  foreign  country  though  such  remedy 
was  as  a  matter  of  local  policy,  suspended  in  place  where  transaction  originated: 
Hart  v.  Gumpach,  L.  R.  4  P.  C.  439,  42  L.  J.  P.  C.  N.  S.  25,  9  Moore,  P.  C.  N.  S. 
241,  21  Week.  Rep.  365,  holding  that  actions  for  libel  arising  in  a  foreign  country 
may  be  brought  in  the  English  courts. 

Cited  in  note  in  56  L.R.A.  195,  222,  on  conflict  of  laws  as  to  action  for  death 
or  bodily  injury. 
—  Laws    governing. 

Cited  in  Cuba  R.  Co.  v.  Crosby,  95  C.  C.  A.  539,  170  led.  369,  holding  that  in 
action  by  servant  for  personal  injury  received  in  foreign  country  court  will  apply 
law  of  forum  which  will  be  presumed  to  be  that  also  of  country  where  injury  was 
received.;  Papageorgiou  v.  Turner,  37  N.  B.  449,  holding  that  civil  liability  for  act 
done  in  a  foreign  country  is  governed  by  the  laws  of  that  country;  Crusby  v. 
Cuba  R.  Co.  158  Fed.  144,  holding  that  action  for  personal  injury  caused  by 
negligence  and  occurring  in  a  foreign  jurisdiction  may  be  maintained  without 
pleading  and  proof  of  the  statutes  of  such  foreign  state;  Phillips  v.  Eyre,  L.  R. 
4  Q.  B.  225,  240,  38  L.  J.  Q.  B.  N.  S.  113,  19  L.  T.  N.  S.  770,  17  Week.  Rep.  375, 
on  right  to  recover  damages  for  act  in  a  foreign  country  under  the  laws  of  which 
no  damages  were  recoverable  therefor. 


1  E.  R.  C.  533]        NOTES  ON  ENGLISH  RULING  CASES.  96 

Distinguished    in    Corapanhia    de  Mocambique    v.    British    South    Africa    Co. 
[1S92]  2  Q.  B.  358,  on  presumption  as  to  an  act  being  unlawful  under  laws  of  a 
foreign  country. 
Pendency  of  foreign  action  as  defense. 

Cited  in  Howard  Guernsey  Mfg.  Co.  v.  King,  Rap.  Jud.  Quebec  5  C.  S.  182 : 
Fowler-  v.  Malada,  Nevvfoundl.  Rep.  (1874-S4)  263, — holding  that  pendency  of 
another  action  in  a  foreign  court  cannot  be  set  up  as  a  defense;  Direct  United 
States  Cable  Co.  v.  Dominion  Teleg.  Co.  8  Ont.  App.  Rep.  416.  holding  that 
pendency  of  foreign  action  for  the  same  cause  cannot  be  set  up  by  demurrer. 

The  decision  of  the  Court  of  Exchequer  was  cited  in  Smith  v.  Lathrop,  44  Pa. 
.'526,  82  Am.  Dec.  44S,  holding  that  plea  of  lis  pendens  in  another  state,  is  not  de- 
fense to  suit  between  same  parties,  for  same  cause  of  action  at  same  time  here. 

1  E.  R.  C.  547,  HARROP  v.  HIRST,  L.  R.  4  Exch.  43,  19  L.  T.  N.  S.  426,  17  Week. 

Rep.  164,  38  L.  J.  Exch.  N.  S.  1. 
Actionable  invasion  of  personal  rights. 

Cited  in  McCartney  v.  Londonderry  &  L.  S.  R.  Co.  [1904]  A.  C.  301,  73  L.  J. 
P.  C.  N.  S.  73,  91  L.  T.  N.  S.  105,  53  Week.  Rep.  385:  Melrose  v.  Cutter,  159 
Mass.  461,  34  N.  E.  695, — holding  that  showing  of  actual  damage  is  not  necessary 
to  injunction  against  an  invasion  of  plaintiff's  rights:  Brocklebank  v.  Thompson 
[1903]  2  Ch.  344,  72  L.  J.  Ch.  N.  S.  626,  89  L.  T.  N.  S.  209,  19  Times  L.  R.  285, 
on  same  point;  Bragg  v.  Laraway,  65  Vt.  673,  27  Atl.  492,  holding  that  action 
will  lie  for  entry  upon  plaintiff's  land  though  no  actual  damage  is  shown. 

—  Wrongs  tending  toward   prescription. 

Cited  in  Goodhart  v.  Hyett,  L.  R.  25  Ch.  Div.  1S2,  53  L.  J.  Ch.  N.  S.  219,  50 
L.  T.  N.  S.  95,  32  Week.  Rep.  165,  48  J.  P.  293;  George  v.  Lysaght,  49  L.  T.  N. 
S.  49,  47  J.  P.  696, — on  right  to  maintain  action  to  restrain  an  act  done  as  of 
tight  and  which  would  if  continued  create  a  right. 

Cited  in  note  in  8  E.  R.  C.  346,  on  right  to  claim  profit  in  land  of  another  by 
custom  or  otherwise. 

—  Injury  to  easements. 

Cited  in  Collins  v.  St.  Peters,  65  Vt.  618,  27  Atl.  425,  holding  that  action  will 
lie  for  the  obstruction  of  an  easement  of  way  without  any  showing  of  actual  dam- 
ages; Burton  v.  Dougherty,  19  N.  B.  51,  holding  that  action  for  obstruction  of 
highway  will  not  lie  in  favor  of  one  who  does  not  attempt  to  use  it,  though  he 
was  put  to  expense  by  going  another  way  when  learning  of  the  obstruction. 

Cited  in  notes  in  68  L.R.A.  689,  on  liability  for  removal  of  lateral  or  subjacent 
support  of  land  in  its  natural  condition:  10  E.  R.  C.  313,  on  mandatory  injunc- 
tion for  protection  of  easement. 

—  Common  rights  in  waters. 

Cited  in  Townsend  v.  Bell,  62  Hun,  306,  17  N.  Y.  Supp.  210,  holding  that  in- 
junction will  lie  to  prevent  the  continued  discharge  of  impure  matter  into  a 
stream  and  plaintiff  need  not  show  actual  damage  to  entitle  him  thereto;  Byron 
v.  Stimpson,  17  N.  B.  697,  holding  that  riparian  proprietor  may  maintain  action 
for  obstruction  of  access  to  navigable  water  without  showing  particular  damage; 
Beamish  v.  Barrett,  16  Grant,  Ch.  (U.  C.)  318  (dissenting  opinion),  on  right  of 
riparian  owners  to  enjoin  use  of  stop  logs  on  dam  where  their  use  might  raise 
the  water  on  their,  lands  under  certain  circumstances,  though  it  had  never 
occurred. 


97  NOTES  ON   ENGLISH  RULING  CASES.        [1  E.  R.  C.  560 

Cited  in  note  in  41  L.R.A.  756,  on  correlative  rights  of  upper  and  lower  pro- 
prietors as  to  use  and  flow  of  stream. 

1  E.  R.  C.  555,  WEDGEWOOD  v.  BAILEY,  T.  Rayin.  403. 
Effect  of  death  of  party  while  action  is  pending. 

Cited  in  Brewer  v.  Porch,  17  N.  J.  L.  377,  holding  that  where  action  survives 
the  death  of  a  defendant,  it  is  not  too  late  to  suggest  the  death  of  one  of  the  de- 
fendants upon  the  return  of  the  postea,  even  though  the  death  occurred  before  the 
trial. 

Distinguished  in  Freeborn  v.  Denman,  8  N.  J.  L.  116,  holding  that  authority 
of  referees  in  cause  referred  to  them  is  not  revoked  by  the  death  of  one  of  several 
plaintiff's  therein,  but  suggestion  of  such  death  may  be  entered  on  the  record: 
Winn  v.  Cole,  Walk.  (Miss.)  119,  on  right  of  heir  to  recover  on  a  demise  laid  in 
his  name  during  life  of  ancestor  who  dies  before  judgment. 

1  E.  R.  C.  560,  CROSBY  v.  LONG,  12  East,  409,  11  Revised  Rep.  437. 
Civil  action  for  a  felony,  necessity  of  prior  criminal  prosecution. 

Cited  in  Morgan  v.  Rhodes,  1  Stew.  (Ala.)  70,  holding  that  master  cannot 
maintain  action  for  killing  his  slave,  if  slayer  by  his  collusion,  has  been  dis- 
charged from  prosecution  for  felony;  Middleton  v.  Holmes,  3  Tort.  (Ala.)  424, 
holding  that  in  civil  action  for  the  killing  of  a  slave  the  declaration  must  show 
that  the  defendant  has  been  tried  for  the  criminal  offense;  Boston  &  W.  R.  Corp. 
v.  Dana,  1  Gray.  S3,  holding  that  for  goods  feloniously  taken  action  lies  against 
felon,  before  institution  of  criminal  proceedings  against  him;  Adams  v.  Lee,  5 
Ga.  404,  holding  that  suspension  of  civil  remedy  until  after  criminal  prosecution 
applies  only  to  treason  and  felonies;  Wyatt  v.  Williams,  43  N.  H.  102;  Hyatt  v. 
Adams,  16  Mich.  180, — on  suspension  of  the  civil  remedy  until  after  criminal 
prosecution  and  the  reasons  therefor;  Struthers  v.  Peckham,  22  R.  I.  8,  45  Atl. 
742,  holding  that  trover  does  not  lie  for  the  recovery  of  money  embezzled  or 
stolen  until  after  complaint  and  issue  of  process  for  the  crime;  Leeman  v.  Public 
Service  R.  Co.  77  N.  J.  L.  420,  72  Atl.  8,  holding  that  failure  to  prosecute  crimi- 
nally, where  civil  remedy  is  sought  can  be  urged  only  for  delaying  trial  until 
public  duty  has  been  performed — not  for  judgment  of  nonsuit;  Walsh  v.  Nattress, 
19  U.  C.  C.  P.  453,  holding  that  action  for  seduction  should  be  suspended  until 
criminal  offense  has  been  disposed  of,  where  charge  constitutes  felony;  Taylor  v. 
McCullough,  S  Ont.  Rep.  309,  holding  that  civil  action  for  assault  and  battery 
may  be  suspended  until  criminal  action  is  disposed  of;  Pease  v.  M'Aloon,  3  N.  B. 
Ill,  holding  that  trover  will  not  lie  to  recover  a  horse  from  a  purchaser  from  one 
who  stole  it,  unless  effort  has  been  made  to  prosecute  the  thief;  Schohl  v.  Kay. 
10  N.  B.  244,  holding  that  civil  action  for  assault  amounting  to  "grievous  bodily 
harm"  will  not  lie  unless  defendant  has  been  prosecuted  for  the  felony;  Lamothe 
v.  Chevalier,  4  Lower  Can.  Rep.  160,  holding  that  where  assault  charged  would 
amount  to  felony,  plaintiff  may  proceed  in  action  for  damages,  without  being 
obliged  to  prosecute  criminally;  Paquet  v.  Lavoie,  Bap.  Jud.  Quebec,  7  B.  R.  277. 
on  satisfying  the  criminal  law  before  the  private  civil  law  in  a  felony  case;  Mid- 
land Ins.  Co.  v.  Smith,  L.  R.  6  Q.  B.  Div.  501,  50  L.  .1.  Q.  B.  X.  S.  329,  45  L.  T. 
N.  S.  411,  29  Week.  Rep.  850,  45  J.  P.  699,  on  duty  not  to  institute  civil  action 
until  criminal  prosecution  has  been  had. 

Cited  in  1  Cooley,  Torts,  3d  ed.  152.  on  order  of  proceeding  when  an  action 
is  both  a  public  and  a  private  offense;  6  Thompson,  Neg.  142,  on  civil  liability 
for  death  by  wrongful  act  amounting  to  a  felony  after  conviction  of  the  felony 
Notes  on  E.  R.  C— 7. 


1.  E.  R.  C.  560]       NOTES  ON  ENGLISH  RULING  CASES.  98 

Distinguished  in  Shields  v.  Yonge,  15  Ga.  349,  60  Am.  Dec.  698,  holding  that 
civil  action  for  "involuntary  manslaughter  in  doing  a  lawful  act"  is  not  suspend- 
ed until  after  prosecution  for  the  misdemeanor. 

Disapproved  in  Pettingill  v.  Rideout,  6  N.  H.  454,  25  Am.  Dec.  473,  holding  that 
civil  action  will  lie  without  prior  criminal  prosecution;  Green  v.  Hudson  River 
R.  Co.  10  How.  Pr.  230,  on  same  point;  McBlain  v.  Edgar,  65  N.  J.  L.  634,  48  Atl. 
600,  holding  that  civil  action  will  lie  though  indictment  for  the  felony  has  not 
been  prosecuted  to  a  conviction  or  an  acquittal;  White  v.  Fort,  10  N.  C.  (3 
Hawks)  251,  holding  defendant  liable  in  civil  action  for  the  burning  of  a  house 
without  previous  conviction  or  acquittal  for  the  felony;  White  v.  McKiel,  28  N. 

B.  39,  holding  that  civil  action  need  not  be  suspended  where  it  does  not  appear 
from  the  evidence  that  defendant  has  not  been  criminally  prosecuted. 

—  Judgment  in  criminal  prosecution  as  bar. 

Cited  in  Grafton  Bank  v.  Flanders,  4  N.  H.  239;  Macdonald  v.  Ketchum,  7  U. 

C.  C.  P.  484, — holding  that  civil  action  lies  after  criminal  prosecution  is  termi- 
nated, whether  by  conviction  or  by  acquittal;  Ocean  Ins.  Co.  v.  Fields,  2  Story,  59, 
Fed.  Cas.  No.  10,406;  Hall  v.  Nashville  &  C.  R.  Co.  1  Shannon,  Cas.  141,  Thomp. 
Tenn.  Cas.  204— on  same  point;  Cole  v.  Hubble,  26  Ont.  Rep.  279,  holding  that 
acquittal  in  prosecution  for  rape  is  not  a  bar  to  subsequent  civil  action  by  the 
father  of  the  female  for  enticing  away  and  having  carnal  connection  with  his 
daughter. 

—  Merger  of  civil  injury  in  the  felony. 

Cited  in  Plummer  v.  Webb,  1  Ware,  69,  Fed.  Cas.  No.  11,234,  holding  that  doc- 
trine of  merger  of  private  injury  in  .the  felony  does  not  obtain  in  this  jurisdic- 
tion; Nash  v.  Primm,  1  Mo.  17S,  holding  that  private  injury  is  not  merged' in  the 
felony  so  as  to  prevent  civil  action  for  the  killing  of  plaintiff's  slave;  Davis  v. 
Justice,  31  Ohio  St.  359,  27  Am.  Rep.  514  (dissenting  opinion),  on  liability  to 
civil  action  where  death  is  caused  by  felony. 
Collateral  attack  on  judgment  for  collusion. 

Cited  in  Atkinson  v.  Allen,  12  Vt.  619,  36  Am.  Dec.  361,  holding  that  third 
person  may  attack  judgment  collaterally  by  showing  collusion;  Michaels  v.  Post, 
21  Wall.  398,  22  L.  ed.  520,  on  same  point.  • 

Autrefois  acquit. 

Cited  in  State  v.  Sias,  17  N.  H.  558,  holding  that  acquittal  on  charge  of  larceny, 
was  no  bar  to  subsequent  indictment  for  conspiring  with  others  unlawfully  to  ob- 
tain goods  for  which  larceny  was  charged. 

1  E.  R.  C.  567,  ATTY.  GEN.  v.  SHREWSBURY  BRIDGE  CO.  L.  R.  21  Ch.  Div. 

752,  51  L.  J.  Ch.  N.  S.  746,  46  L.  T.  N.  S.  6S7,  30  Week:  Rep.  916. 
Public  action  to  restrain  act  tending  to  the  injury  of  the  public. 

Cited  in  Respass  v.  Com.  131  Ky.  807,  21  L.R.A.(N.S.)  836,  115  S.  W.  1131, 
holding  that  attorney  general  possesses  common-law  power  to  maintain  proceed- 
ings to  enjoin  nuisance,  where  state's  interest  demands  it;  Atty.  Gen.  v.  Wil- 
liams (Knowlton  v.  Williams)  174  Mass.  476,  47  L.R.A.  314,  55  N.  E.  77,  hold- 
ing that  attorney  general  may  bring  suit  to  restrain  violation  of  statute  govern- 
ing the  height  of  buildings;  State  ex  rel.  Board  of  Health  v.  Diamond  Mills  Paper 
Co.  63  N.  J.  Eq.  Ill,  51  Atl.  1019,  sustaining  validity  of  act  authorizing  state 
board  of  health  to  bring  action  to  enjoin  the  discharge  of  sewage  and  other  im- 
pure matters  into  streams  used  for  water  supply;  Hart  v.  Macllreith,  41  N.  S.  351, 


99  NOTES  OX  ENGLISH   RULING  CASKS.        LI    E.   R.  C.  374 

on  necessity  of  joining  attorney  general  in  suit  against  mayor  and  city  council  to 

recover  moneys  alleged  to  have  been  illegally  paid  out. 

—  To  restrain  corporation  or   franchise  holder   from  excess  of  power. 

Cited  in  Muncie  Natural  Gas  Co.  v.  Muncie,  1G0  Jud.  97,  GO  L.R.A.  822,  66  X. 
E.  43G,  holding  that  city  may  bring  action  to  restrain  gas  company  from  operat- 
ing under  a  franchise  where  it  is  violating  a  provision  therein  governing  price 
to  be  charged;  Stockton  v.  Central  R.  Co.  50  N.  J.  Eq.  52,  17  L.R.A.  97,  24  Atl. 
964,  holding  that  attorney  general  may  maintain  suit  to  restrain  acts  in  excess  of 
corporate  power  where  a  tendency  to  public  injury  is  shown;  Grey  ex  rel.  Morris 
&  C.  Dredging  Co.  v.  Greenville,  59  N.  J.  Eq.  372,  46  Atl.  638,  holding  that  at- 
torney general  may  maintain  suit  to  enjoin  railroad  company  from  constructing 
branch  line  without  authority,  without  any  showing  of  actual  damage;  Mc- 
Carter  v.  Firemen's  Ins.  Co.  74  N.  J.  Eq.  372,  29  L.R.A.  (X.S.)  1194,  135  Am.  St. 
Rep.  70S,  73  Atl.  80,  IS  Ann.  Cas.  1048,  holding  that  ultra  vires  acts  of  corpora- 
tion, contrary  to  public  policy,  may  be  restrained  at  suit  of  attorney  general, 
without  regard  to  whether  actual  injury  has  resulted;  Wilson  v.  Hudson  County 
Water  Co.  76  N.  J.  Eq.  543,  76  Atl.  560,  holding  that  proposed  excavation  and 
laying  of  pipe  line  through  lands  of  state  by  water  company  may  be  enjoined  at 
suit  of  attorney  general  without  showing  irreparable  injury  to  state's  rights; 
Atty.  Gen.  v.  Bergen,  29  N.  S.  135,  holding  that  attorney  general  may  maintain 
suit  to  restrain  incorporators  of  railway  company  from  proceeding  with  con- 
struction of  railway  on  ground  that  the  company  was  not  legally  organized; 
West  v.  Parkdale,  12  Ont.  App.  Rep.  393;  Re  Bronson,  1  Ont.  Rep.  415,— on  in- 
junction at  instance  of  attorney  general  to  restrain  corporation  from  exceeding 
their  statutory  powers;  Atty  .-Gen.  v.  London  &  X.  W.  R.  Co.  [1S99]  1  Q.  B.  72, 
68  L.  J.  Q.  B.  X.  S.  4,  79  L.  T.  X.  S.  412,  15  Times  L.  R.  39,  affirmed  in  [1900] 
1  Q.  B.  78,  69  L.  J.  Q.  B.  X.  S.  26,  63  J.  P.  772,  81  L.  T.  X.  S.  649,  16  Times  L.  R. 
30,  holding  that  attorney  general  may  maintain  suit  to  restrain  company-  from 
acting  in  excess  of  its  authority  without  showing  damage. 

Cited  in  notes  in  59  L.R.A.  65,  on  right  to  obstruct  or  destroy  rights  of  naviga- 
tion by  bridges;  22  Eng.  Rul.  Cas.  129,  on  injunction  against  ultra  vires  acts  of 
railroad.  v 

Distinguished  in  Atty.  Gen.  v.  Xiagara  Falls,  W.  P.  &  C.  Tramway  Co.  18  Ont. 
App.  Rep.  453  (affirming  19  Ont.  Rep.  624),  holding  that  injunction  will,  not 
lie  at  instance  of  attorney  general,  to  restrain  railroad  from  running  trains  on 
Sunday  though  such  act  may  be  illegal ;  London  Asso.  of  Shipowners  v.  London 
&  I.  Docks  Joint  Committee  [1S92]  3  Ch.  242,  62  L.  J.  Ch.  X.  S.  294,  2  Reports, 
23,  67  L.  T.  X.  S.  238,  7  Asp.  Mar.  L.  Cas.  195,  holding  that  parties  bringing 
action  to  restrain  company  from  committing  legal  acts,  without  joining  the  at- 
torney general  as  plaintiff  must  show  that  they  would  incur  special  damage. 

1  E.  R.  C.  574,  RICKET  v.  METROPOLITAX  R.  CO.  5  Best  &  S.  156,  L.  B.  2  H.  L. 
175,  16  L.  T.  X.  S.  542,  15  Week.  Rep.  937,  36  L.  J.  Q.  B.  X.  S.  205,  affirming 
the  decision  of  the  Exchequer  Chamber,  reported  in  11  Jur.  \.  S.  260,  12 
L.  T.  X.  S.  79,  13  Week.  Rep.  455,  34  L.  J.  Q.  B.  X.  S.  257,  which  reverses  the 
decision  of  the  Court  of  Queen's  Bench,  reported  in  5  Best  &  S.  150. 

Right  to  compensation   for   injury   from   public   work  —  railroads. 

Cited  in  Austin  v.  Augusta  Terminal  R.  Co.  108  Ga.  671,  47  L.R.A.  755,  34  S.  E. 

852,  holding  railroad  not  liable  for  the  depreciation  in  value  of  property  resulting 

from   the   noise,    smoke    and    cinders    from   the   lawful    operation    of    the    road ; 

Gottschalk  v.   Chicago,   B.   &   Q.   R.    Co.    14   Xeb.    550,    17    X.    W.    120    (dissent- 


1  E.  R.  C.  574]        NOTES  ON  ENGLISH  RULING  CASES.  100 

ing  opinion),  on  compensation  under  railway  statutes  being  allowed  only  where 
damages  could  have  been  recovered  in  the  absence  of  the  statute;  E.  J.  Brooks 
Co.  v.  Delaware,  L.  &  W.  R.  Co.  80  N.  J.  L.  676,  78  Atl.  51,  holding  that 
where  railroad  company  tore  down  fence  and  gateway  upon  plaintiff's  prem- 
ises and  obstructed  passage  of  driveway,  plaintiff  suffered  "special  damage" 
and  was  entitled  to  recover  same;  Taylor  v.  Metropolitan  Elev.  R.  Co.  18  Jones 
&  S.  311,  holding  that  erection  of  elevated  railroad  in  street  constituted  tak- 
ing of  private  property  only  to  extent  that  such  structure  was  inconsistent 
with  and  in  excess  of  ordinary  uses  of  street,  and  only  to  that  extent  was  com- 
pany liable  to  make  compensation ;  Smith  v.  St.  Paul,  M.  &  M.  R.  Co.  39  Wash 
355,  70  L.R.A.  1018,  109  Am.  St.  Rep.  889,  81  Pac.  840,  holding  railroad 
operating  trains  on  its  own  land  liable  to  adjoining  owners  only  where  their 
property  is  physically  affected  by  the  jarring  of  the  earth  or  by  casting  soot, 
cinders  and  smoke  thereon;  Hornby  v.  New  Westminster  Southern  R.  Co.  6 
B.  C.  588,  holding  that  owner  of  lands  flooded  by  the  construction  of  a  railroad 
embankment  and  ditch  constructed  under  legislative  authority,  cannot  recover  for 
damages  caused  thereby;  Paradis  v.  R.  1  Can.  Exch.  191,  on  conflicting  decisions 
on  law  of  compensation  by  railroad  companies;  Re  Scott,  6  Manitoba  L.  Rep.  193, 
holding  that  compensation  may  be  allowed  for  depreciation  in  value  of  land  not 
taken  necessarily  resulting  from  the  operation  of  the  railroad;  McArthnr  v. 
Northern  &  P.  Junction  R.  Co.  17  Out.  App.  Rep.  86,  on  compensation  being  the 
remedy  for  acts  of  the  railway  company  within  its  statutory  authority  only; 
Widder  v.  Buffalo  &  L.  H.  R.  Co.  27  U.  C.  Q.  B.  425;  Widder  v.  Buffalo  &  L.  H. 
R.  Co.  29  U.  C.  Q.  B.  154, — on  liability  of  railroad  to  compensation  for  land  in- 
juriously affected,  where  no  land  was  actually  taken;  Compagnie  Du  Chemin  De 
Fer  Du  Nord.  12  Quebec  L.  R.  205,  holding  riparian  owners  could  not  recover  from 
railroad  company  for  damages  done  to  the  conduct  of  their  business  by  the  con- 
struction of  a  railroad  upon  the  river  bank;  Debois  v.  R.  1  Has.  &  War.  (Pr. 
Edw.  Isl.)  398,  on  liability  of  railroad  company  to  compensate  land  owners  for 
land  taken  or  damaged;  Wood  v.  Atlantic  &  N.  W.  R.  Co.  Rap.  Jud.  Quebec  2 
B.  R.  335,  holding  that  where  railroad  has  taken  part  of  land,  it  is  liable  for 
the  direct  injury  to  the  remaining  land  resulting  from  the  construction  and 
operation  of  the  railway  line;  Glasgow  Union  R.  Co.  v.  Hunter,  L.  R.  2  H.  L. 
Sc.  App.  Cas.  78,  holding  that  compensation  should  not  be  given  on  account  of 
noise  and  smoke  of  trains,  though  part  of  claimants'  land  is  taken;  Hammer- 
smith &  C.  R.  Co.  v.  Brand,  L.  R.  4  H.  L.  171,  38  L.  J.  Q.  B.  N.  S.  265,  21  L.  T. 
N.  S.  238,  18  Week.  Rep.  12,  1  Eng.  Rul.  Cas.  623  (affirming  L.  R.  1  Q.  B. 
130,  L.  R.  2  Q.  B.  223,  36  L.  J.  Q.  B.  N.  S.  139;  Pennsylvania  R.  Co.  v. 
Marchant,  45  Phila.  Leg.  Int.  196,  21  W.  N.  C.  300,— holding  railroad  not  liable  for 
injury,  from  noise,  smoke,  dirt,  cinders  or  jarring  from  operation  of  its  road,  to 
property  no  part  of  which  was  taken  for  the  construction  of  the  road;  R.  v. 
Poulter,  56  L.  J.  Q.  B.  N.  S.  581,  holding  owner  of  building  entitled  to  compensa- 
tion where  its  use  is  interfered  with  by  the  cutting  off  of  the  light  by  the  erection 
of  a  railroad  warehouse.' 

Distinguished  in  R.  v.  Cambrian  R.  Co.  L.  R.  6  Q.  B.  422.  40  L.  J.  Q.  B.  N. 
S.  169,  25  L.  T.  N.  S.  84,  19  Week.  Rep.  1138,  holding  ferry  owner  entitled  to  com- 
pensation for  reduced  traffic  where  railroad  company  under  legislative  authority 
built  a  railroad  bridge  with  toll  foot-way  for  passengers. 

The  decision  of  the  Court  of  Queen's  Bench  was  cited  in  Renaud  v.  Quebec, 
8  Quebec  L.  R.  102,  holding  damages  recoverable  under  (statute  for  inconveniences 
caused  property  owner  by  operation  of  railroad. 


101  NOTES  ON    ENGLISH   RULING   CASKS.       [l    E.  R.  C.  574 

—  Other  public  works. 

Cited  in  Peel  v.  Atlanta,  85  Ga.  138,  8  L.R.A.  7S7.  11  S.  E.  582,  holding  that 
loss  of  privacy  from  the  opening  of  a  public  street  on  adjoining  lot  is  not  ground 
for  compensation;  Howard  v.  Bibb  County,  127  Ga.  291,  56  S.  E.  lis,  to  the  point 
that  liability  of  municipality  for  damages  caused  by  public  improvements,  damage 
must  be  to  land  itself;  Lincoln  v.  Com.  164  Mass.  36S,  41  N.  E.  489,  on  what 
amounts  to  a  "taking"  so  as  to  require  compensation;  Columbia  Delaware  Bridgi 
Co.  v.  Geisse,  35  N.  J.  L.  558,  holding  owners  of  ferry  entitled  to  compensation 
for  injury  from  building  of  bridge,  where  such  ferry  owners  would  have  been 
entitled  to  damages  had  the  bridge  been  built  without  legislative  authority;  Re 
Squire,  4  Silv.  Ct.  App.  325,  26  N.  E.  142,  holding  that  owner  of  house  on  lot 
adjoining  one  taken  for  temporary  use  for  engine  house,  etc.,  in  construction  of 
aqueduct,  is  not  entitled  to  damages  because  of  noise,  smoke  and  dust;  Stewart 
v.  Rutland,  58  Vt.  12,-  4  Atl.  420,  holding  that  in  assessing  compensation  for 
taking  land  for  sewer  purposes  damages  cannot  be  allowed  for  consequential  in- 
jury caused  by  the  noxious  vapors  rendering  the  property  less  enjoyable;  Mc- 
Pherson  v.  R.  1  Can.  Exeh.  53,  on  cases  where  damage  was  done  to  the  land 
itself;  R.  v.  Metropolitan  Bd.  of  Works,  L.  R.  4  Q.  B.  358,  38  L.  J.  Q.  B.  N.  S. 
201,  10  Best  &  S.  391,  17  Week.  Rep.  1094,  holding  land  owner  not  entitled  to 
compensation  for  injury  from  construction  of  embankment  along  river  whereby 
his  access  for  purposes  of  drawing  water,  and  of  using  public  draw  dock  was  cut 
off;  Rhodes  v.  Airedale  Drainage  Comrs.  L.  R.  1  C.  I'.  Div.  380,  45  L.  J.  C.  P. 
N.  S.  861,  35  L.  T.  N.  S.  46.  24  Week.  Rep.  1053,  on  damage  under  statute  as 
being  confined  to  such  as  would  have  been  actionable  in  the  absence  of  the 
statute;  Burgess  v.  Northwich  Local  Board,  L.  R.  6  Q.  B.  Div.  264,  50  L.  J.  Q. 
B.  N.  S.  219,  44  L.  T.  N.  S.  154,  29  Week.  Rep.  931,  45  J.  P.  256,  holding  abutting 
owner  not  entitled  to  compensation  for  cost  of  raising  buildings  to  conform  to 
raise  of  street  by  municipality,  where  both  land  in  street  and  under  buildings 
had  settled  from  natural  causes;  R.  v.  Essex,  L.  R.  17  Q.  B.  Div.  447,  holding  that 
compensation  for  injury  to  value  of  other  land  not  connected  with  land  taken  for 
sewage  farm  cannot  be  allowed  though  owned  by  the  same  person;  Buccleuch  v. 
Metropolitan  Bd.  of  Works,  L.  R.  5  H.  L.  418,  5  Exch.  221.  39  L.  J.  Excb. 
N.  S.  130,  3  Eng.  Rul.  Cas.  455  (which  affirmed  L.  R.  3  Exch.  306,  37  L.  J.  Exch. 
N.  S.  177,  reversing  41  L.  J.  Exch.  N.  S.  137),  holding  landowner  not  entitled 
to  compensation  for  depreciation  in  value  of  premises  because  cut  off  from  direct 
access  to  river  by  a  public  work  but  if  any  part  is  taken  he  may  so  recover. 

Cited  in  4  Dillon,  Mon.  Corp.  5th  ed.  2935,  on  abutting  owner's  right  to  com- 
pensation for  loss  of  trade  due  to  lowering  roadway. 

—  Obstruction  of  street  or  other  public   easement. 

Cited  in  Hot  Springs  R.  Co.  v.  Williamson,  45  Ark.  420.  holding  that  abutting 
owner  is  entitled  to  compensation  where  access  to  his  premises  is  cut  off  by 
railroad  in  the  street  though  he  has  no  title  to  the  street;  Reardon  v.  San  Fran- 
cisco, 66  Cal.  492,  56  Am.  Rep.  109,  6  Pac.  317,  holding  owner  of  land  adjoining 
street  entitled  to  compensation  for  damage  to  foundations  of  buildings  caused  by 
street  improvement;  Denver  v.  Bayer,  7  Colo.  113,  2  Pac.  0,  bidding  abutting 
owner  entitled  to  compensation  for  injury  caused  by  the  construction  and  opera- 
tion of  a  railroad  in  the  street  in  front  of  his  property,  though  it  is  constructed 
by  authority  from  the  city;  Baker  v.  Boston  Elev.  R.  Co.  183  Mass.  ITS.  66  N.  E. 
711,  holding  that  compensation  can  be  recovered  for  noise  of  elevated  railway 
where  it  is  such  as  would  have  constituted  a  private  nuisance  if  not  authorized: 
Ryerson  v.  Morris  Canal  &  Bkg.  Co.  69  N.  J.  L.  505,  55  Atl.  98,  to  the  point  that 


1.  E.  R.  C.  574]       NOTES  OX  ENGLISH  RULING  GASES.  102 

only  landowners  whose  property  is  adjacent  to  nuisance  can  maintain  private 
action  on  account  of  nuisance;  Smith  v.  St.  Paul,  M.  &  M.  R.  Co.  39  Wash.  355, 
70  L.R.A.  1018,  109  Am.  St.  Rep.  889,  81  Pac.  840,  holding  railroad  excavating 
in  street  not  liable  for  injury  to  access  to  property  not  abutting  on  the  street 
affected;  Re  Nicholson,  7  Manitoba  L.  Rep.  400,  holding  that  in  awarding  com- 
pensation for  the  taking  of  land  along  a  river,  no  allowance  should  be  made  for 
interference  with  an  endless  chain  used  to  take  ice  up  from  the  river  to  storage 
buildings;  Re  Devlin,  40  LT.  C.  Q.  B.  160,  holding  that  owner  of  building  adjoin- 
ing street  cannot  recover  for  injury  thereto  from  vibration  caused  by  the  opera- 
tion of  a  railroad  in  the  street,  built  there  by  permission  from  the  municipality: 
Story  v.  New  York  Elev.  R.  Co.  90  N.  Y.  122,  43  Am.  Rep.  146,  holding  adjoining 
owner  entitled  to  compensation  where  easement  of  light  is  interfered  with  by  the 
construction  of  an  elevated  railway  in  the  street;  R.  v.  Barry,  2  Can.  Exch. 
333,  holding  that  landowner  may  recover  compensation  where  railroad  is  con- 
structed in  front  of  his  property  so  as  to  render  it  unfit  for  a  purpose  for  which 
it  was  fit  and  intended;  Poin  v.  North  Shore  R.  Co.  14  Can.  S.  C.  677  (dissenting 
opinion),  on  no  compensation  for  damage  to  landowner  from  being  cut  off  from 
navigable  stream  by  the  construction  of  a  railroad:  R.  v.  MacArthur,  34  Can.  S. 
C.  570  (reversing  8  Can.  Exch.  245),  holding  owner  of  land  not  entitled  to  com- 
pensation where,  by  the  construction  of  a  public  work  he  is  compelled  to  use  a 
longer  and  less  convenient  route  to  reach  enother  district;  Yeomans  v.  Welling- 
ton County,  4  Ont.  App.  Rep.  301,  holding  landowner  entitled  to  compensation 
where  municipality  raises  the  highway  in  front  of  his  premises  so  as  to  cut  off 
ingress  and  egress  to  and  from  adjoining  property;  Eord  v.  Metropolitan  &  M.  D. 
R.  Co.  L.  R.  17  Q.  B.  Div.  12,  55  L.  J.  Q.  B.  N.  S.  290,  54  L.  T.  N.  S.  71S,  34  Week. 
Rep.  426,  50  J.  P.  661,  holding  lessee  of  rooms  entitled  to  compensation  where 
construction  of  railroad  takes  away  an  easement  necessary  for  access  thereto; 
Metropolitan  Bd  of  Works  v.  McCarthy,  L.  R.  7  H.  L.  243,  43  L.  J.  C.  P.  N.  S. 
385,  31  L.  T.  N.  S.  182,  23  Week.  Rep.  115  (affirming  T  .  R.  S  C.  P.  191,  42  L.  J. 
C.  P.  N.  S.  81,  which  affirmed  L.  R.  7  C.  P.  50S),  holding  lessee  entitled  to 
compensation  where  he  was  cut  off  from  access  to  dock  by  public  embankment, 
whereby  the  value  of  the  premises  for  his  use  was  materially  diminished. 

Distinguished  in  Caledonian  R.  Co.  v.  Walker,  L.  R.  7  App.  Cas.  259,  46  L.  T. 
N.  S.  826,  30  Week.  Rep.  509,  46  J.  P.  676,  holding  owner  of  property  entitled  to 
compensation  where  access  thereto  is  so  interfered  with  as  to  materially  diminish 
its  value;  Beckett  v.  Midland  R.  Co.  L.  R.  3  C.  P.  82,  37  L.  J.  C.  P.  N.  S.  11, 
17  L.  T.  N.  S.  499,  16  Week.  Rep.  221,  holding  owner  of  house  fronting  on  high- 
way entitled  to  compensation  where  access  thereto  of  light  and  air  is  obstructed 
and  its  recital  value  materially  diminished  by  railroad  embankment  in  highway. 

Disapproved  in  Bowen  v.  Canada  Southern  R.  Co.  14  Ont.  App.  Rep.  1,  holding 
that  interference  with  access  to  property  may  give  right  to  compensation  though 
it  does  not  occur  immediately  in  front  of,  or  adjoining  the  premises  affected. 
—  Temporary  injury. 

Cited  in  Re  Squire,  125  N.  Y.  131,  26  N.  E.  142,  holding  adjoining  owner  not 
entitled  to  compensation  for  temporary  inconvenience  caused  by  the  construction 
of  a  public  work;  Re  Toronto,  H.  &  B.  R.  Co.  28  Ont.  Rep.  14,  holding  that 
structural  damages  to  buildings  from  explosions  during  construction  and  damages 
for  personal  inconvenience  from  interference  with  means  of  access  cannot  be  con- 
sidered in  awarding  compensation. 
■Measure  of  compensation  for  "taking*'  or  injuring-  land. 

Cited  in  Eaton  v.  Boston,  C.  &  M.  R.  Co.  51  N.  H.  504,  12  Am.  Rep.  147,  on 


103.  NOTES  ON  ENGLISH   RULING  CASES.       [1   E.  R.  C.  574 

meaning  of  "consequential  damages;"  Lefebvre  v.  R.  ]  Can.  Exch.  121,  holding  the 
prospective  capabilities  of  the  land  should  be  considered;  Re  Canadian  N.  R.  Co. 
17  .Manitoba  L.  Rep.  396,  holding  that  upon  a  compulsory  taking  of  land,  the 
price  should  be  fixed  at  its  actual  value  to  the  owner. 

Cited  in  3  Dillon,  Mun.  Corp.  5th  ed.  2047,  on  rule  as  to  damages  to  abutting 
owner  for  continuing  nuisance  in  highway. 

The  decision  of  Court  of  Queens  Bench  was  cited  in  Paradis  v.  R.  1  Can.  Exch. 
191,  on  saleable  value  of  premises  not  having  been  diminished  as  not  being  conclu- 
sive in  question  of  injury  to  the  premises;  Anderson  v.  Doty,  33  Hun,  160,  on  con- 
sequential injury  rendering  premises  less  desirable  or  less  valuable  as  not  being 
ground  for  damage,  where  no  physical  injury  is  done  to  the  property. 
Elements  of  damage  to  land   in  use   for   trade. 

Cited  in  Sawyer  v.  Com.  1S2  Mass.  245,  59  L.R.A.  726,  65  N.  E.  520.  holding 
that  damage  to  the  business  fom  the  taking  of  the  land  cannot  be  considered  in 
determining  compensation  for  land  taken  under  water  supply  act;  Ex  parte 
Bergin,  Ir.  L.  R.  13  Eq.  245,  holding  that  sum  awarded  for  trade  loss  is  part  of 
compensation  for  the  taking  of  the  premises;  Montreal  v.  Drummond,  L.  R.  1 
App.  Cas.  384,  45  L.  J.  C.  P.  N.  S.  33,  35  L.  T.  N.  S.  106,  on  loss  of  customer-  as 
not  being  proper  matter  for  compensation;  Bigg  v.  London,  L.  R.  15  Eq.  376,  28 
L.  T.  N.  S.  336,  holding  that  compensation  will  not  be  allowed  for  loss  of  trade 
from  public  work  in  street. 

Cited  in  notes  in  13  L.R.A.  (N.S.)  256,  on  loss  of  customers  as  element  of  dam- 
ages from  obstruction  of  highway;  51  L.R.A.  229,  330,  on  damages  in  eminent  do- 
main cases  as  affected  by  loss  of  profits. 

Distinguished  in  Ripley  v.  Great  Northern  R.  Co.  L.  R.  10  Ch.  435,  31  L.  T.  N.  S. 
869,  23  Week.  Rep.  685,  holding  that  where  land  intended  for  cotton  mills  is  taken 
by  railway,  compensation  should  be  allowed  for  loss  of  prospective  profits  from 
supplying  water  to  the  mills  from  reservoir  built  on  another  part  of  the  land: 
Re  McCauley,  18  Ont.  Rep.  416,  holding  that  where  some  land  is  actually  taken. 
damage  to  the  good  will  of  a  trade  carried  on  upon  the  premises  may  be  con- 
sidered. 

Disapproved  in  Great  Western  R.  Co.  v.  Warner,  19  Grant,  Ch.    (U.  C.)    506, 
holding  that  "depreciation  to  farm  generally"  resulting  from  tbe  permanent  oc- 
cupation of  the  land  by  a  railway  may  be  considered  in  assessing  compensation 
under  railway  act. 
—  Of  damage  to  easement. 

Cited  in  Stadler  v.  Milwaukee,  34  Wis.  98,  holding  owner  entitled  to  com- 
pensation for  injuries  to  land  and  mill  from  change  of  street  grade  and  for  cost 
of  adapting  the  mill  to  the  change  but  not  for  loss  of  use  of  mill  during  time 
used  for  raising  it  and  adapting  it  to  such  change;  Beach  v.  R.  37  Can.  S.  C.  259, 
on  measure  of  damages  for  stoppage  of  water  in  water  power  canal  leased  from 
the  crown. 

Distinguished  in  Eagle  v.  Charing  Cross  R.  Co.  L.  R.  2  C.  P.  638,  36  L.  J.  C. 
P.  N.  S.  297,  16  L.  T.  N.  S.  593,  15  Week.  Rep.  1016,  holding  owner  of  building 
entitled   to   compensation   where   light   is   cut   off   by   railroad   to   the   injury   of 
the  business  carried  on,  though  saleable  value  of  property  is  not  diminished. 
Duty  of  railway  company  in  exercising  its  powers. 

Cited  in  Biscoe  v.  Great  Eastern  R.  Co.  L.  R.  16  Eq.  636,  21  Week.  Rep.  902, 
holding  railway  company  bound  to  exercise  the  powers  granted  it  by  statute  with 
due  regard  for  rights  of  others  and  not  negligently. 


1  E.  R.  C.  574]        NOTES  ON  ENGLISH  RULING   CASES.  104 

Action  for  obstruction  of  highway. 

Cited  in  Little  Rock  &  H.  S.  W.  R.  Co.  v.  Newman,  73  Ark.  12,  108  Am.  St.  Rep. 
17,  83  S.  W.  653,  holding  that  landowner  whose  land  does  not  abut  upon  the 
track  cannot  maintain  suit  for  damages  because  railroad  is  built  along  the  high- 
way; Robinson  v.  Brown,  182  Mass.  266,  65  N.  E.  377,  holding  that  owner  of  land 
abutting  upon  highway  cannot  maintain  action  for  an  obstruction  thereof  which 
is  not 'opposite  his  own  land;  Burton  v.  Dougherty,  19  N.  B.  51,  holding  plaintiff 
not  entitled  to  maintain  action  for  obstruction  of  the  highway  where  he  heard  of 
the  obstruction  and  therefore  went  another  way  at  some  inconvenience  and,  ex- 
pense; Baird  v.  Wilson,  22  LT.  C.  C.  P.  491,  holding  that  to  maintain  action  for 
the  obstruction  of  a  public  way  the  plaintiff  must  show  some  damage  peculiar  to 
himself ;  Plewes  v.  Hall,  29  U.  C.  Q.  B.  472,  holding  that  a  private  person  cannot 
maintain  action  for  damage  for  obstructing  navigable  stream  without  showing 
peculiar  injury  to  himself;  Winterbottom  v.  Derby,  L.  R.  2  Exch.  316,  36  L.  J. 
Exch.  N.  S.  194,  16  L.  T.  X.  S.  771,  16  Week.  Bep.  15,  12  Eng.  Bui.  Cas.  511,  hold- 
ing that  private  person  cannot  maintain  action  for  obstruction  of  public  way  be- 
cause he  has  been  delayed  in  passing  along  it  and  compelled  to  go  some  less  direct 
way. 

Distinguished  in  Ryerson  v.  Morris  Canal  &  Bkg.  Co.  (i!>  N.  J.  L.  505,  55  Atl. 
98,  holding  that  one  owning  farms  at  different  places  may  maintain  action  for 
failure  to  keep  public  bridge  in  repair,  against  one  having  the  duty  to  do  so. 
where  his  communication  between  his  farms  is  interfered  with;  Fritz  v.  Hobson, 
L.  R.  14  Ch.  Div.  542,  49  L.  J.  Ch.  N.  S.  321,  42  L.  T.  N.  S.  225,  28  Week.  Rep. 
459,  holding  adjoining  owner  entitled  to  damages  for  loss  of  trade  for  obstruction 
of  highway  in  front  of  his  place  by  defendant. 

The  decision  of  Exchequer  Chamber  was  cited  in  Baird  v.  Wilson,  22  U.  C.  C. 
P.  491,  holding  that  only  lie  who  lias  sustained  some  damage  peculiar  to  himself 
can  maintain  action  for  obstruction  of  a  highway. 
Presumption  from  change  in  statute. 

Cited  in  People  ex  rel.  Creem  v.  Palmer,  13  Misc.  727,  35  X.  Y.  Supp.  231,  on 
presumption  that  change  is  made  for  some  purpose,  which  should  be  given  effect 
if  it  can  be  ascertained. 
"Good  will"  of  a  trade. 

Cited  in  Inland  Revenue  Comrs.  v.  Muller  [1901]  A.  C.  217,  70  L.  J.  K.  B.  X.  S. 
677,  84  L.  T.  N.  S.  729,  49  Week.  Rep.  003.  17  Times,  L.  R.  53,  on  "good  will" 
of  a  trade  as  being  connected  with  the  property  itself. 
Special  injury  as  essential  to  right  of  action. 

Cited  in  notes  in  1  Eng.  Rul.  Cas.  553,  on  right  of  action  of  member  of  class 
not  specially  injured  for  infringement  of  right  belonging  to  such  class;  7  Eng. 
Rul.  Cas.  482,  on  liability  to  injunction  at  instance  of  private  person  injured, 
or  public  service  corporation  exceeding  its  powers;  8  E.  R.  C.  403,  on  necessity  of 
alleging  and  proving  special  damages. 

1  E.  R.  C.  601,  LYME  REGIS  v.  HENLEY,  2  Clark  &  F.  331.  8  Bligh,  X.  R.  690. 
1  Bing.  N.  C.  222,  1  Scott,  29  affirming  the  decision  of  the  Court  of  King's 
Bench,  reported  in  3  Barn.  &  Ad.  77,  which  affirms  the  decision  of  the  Court 
of  Common  Pleas,  reported  in  5  Bing.  91,  3  Moore  &  P.  278. 

Tort   liability   of   municipal    corporations. 

Cited  in  Lenzen  v.  Xew  Braunfels,  13  Tex.  Civ.  App.  335,  35  S.  W.  341,  holding 

that  city  is  liable  to  patron  for  loss  by  fire  caused  by  city's  negligence  in  failing 

to  supply  water  with  which  to  extinguish  fire. 


105  NOTES  ON    ENGLISH  RULING  CASKS.        |i    E.   Et.  C.  60] 

Cited  in  1  Dillon,  Mun.  Corp.  5th  ed.  589,  on  forfeiture  of  charter  <>f  municipal 
corporation  by  reason  of  misconduct  of  officers. 

The  decision  of  the  Court  of  King's  Bench  was  cited  in  Lees  v.  Carleton  County, 
33  U.  C.  Q.  B.  409,  holding  county  liable  for  damage  to  county  officer  for  breach 
of  its  duty  to  furnish  him  necessary  and  proper  accommodations  as  such  officer. 

The  decision  of  the  Court  of  Common  Fleas  was  cited  in  Lucas  v.  Tippecanoe 
County,  44  Ind.  524,  15  Am.  Rep.  245  (dissenting  opinion),  on  liability  of  munici- 
pality for  injury  caused  by  negligence  of  officers  or  servants;  Buffalo  v.  Vattan. 
1  Sheldon,  4S3,  to  the  point  that  municipality  is  liable  for  neglect  to  perforin 
duty  as  well  as  for  its  negligent  exercise  of  duty;  Patch  v.  Covington,  17  B.  Mun 
722,  GG  Am.  Dec.  186,  holding  that  city  is  not  responsible  to  owner  of  property 
consumed  by  fire,  on  ground  that  it  failed  to  keep  cisterns  filled  with  water, 
whereby  fire  might  have  been  extinguished. 
Defective  streets,  bridges  and  the  like. 

Cited  in  Weet  v.  Brockport,  1G  N.  Y.  161  note,  holding  city  liable  for  injury 
caused  by  unguarded  hole  in  sidewalk  which  was  under  construction  under  direc- 
tion of  its  street  commissioners;  Hutson  v.  New  York,  5  Sandf.  289,  holding  that 
whenever  an  indictment  lies  against  a  corporation  for  non-repair,  an  action  will 
lie  at  the  suit  of  an  individual  sustaining  any  peculiar  damages,  arising  from 
malfeasance  or  misfeasance;  Hyatt  v.  Bondout,  44  Barb.  385,  holding  that  where 
statute  imposes  upon  a  village  the  duty  to  keep  its  highways  in  repair,  it  is  liable 
for  injury  resulting  from  its  failure  to  place  guard  rails  along  the  side  of  the 
highway  where  necessary;  Aldrich  v.  Tripp,  11  B.  I.  141,  23  Am.  Bep.  434,  hold- 
ing city  liable  for  injury  resulting  from  the  street  being  made  unsafe  through  the 
negligent  acts  of  its  water  commissioners  and  their  employees;  Weightman  v. 
Washington,  1  Black,  39,  17  L.  ed.  52,  holding  municipal  corporation,  required  by 
its  charter  to  keep  bridge  in  repair,  liable  for  injuries  resulting  from  its  failure 
to  do  so;  Naumburg  v.  Milwaukee,  77  C.  C.  A.  67,  146  Fed.  641,  holding  city  liable 
for  injury  caused  by  negligence  of  draw  bridge  tender  employed  by  it;  Barnes  v. 
District  of  Columbia,  91  LI.  S.  540,  23  L.  ed.  440,  holding  the  District  of  Colum- 
bia liable  for  injury  caused  by  the  defective  and  negligent  condition  of  its 
streets;  Halifax  v.  Walker,  Cameron  (Can.)  569  (affirming  16  N.  S.  371), 
holding  city  liable  to  owner  of  omnibus  line  for  injury  to  vehicles  and  loss  ol 
custom  caused  by  accumulations  of  snow  and  ice  permitted  to  remain  in  the 
streets;  Patterson  v.  Victoria,  5  B.  C.  628,  holding  municipality  liable  for  injury 
from  defect  in  bridge  under  its  control  where  it  knew  or  ought  to  have  known 
that  it  was  unsafe;  Adams  v.  Halifax,  13  X.  S.  344,  holding  city  liable  for  in- 
jury from  rails  permitted  to  be  left  in  street  after  discontinuance  of  a  street 
railway  thereon;  Harrold  v.  Simcoe  County,  16  FT.  C.  C.  I'.  4:>.  holding  county 
liable  for  injury  resulting  from  its  failure  to  keep  public  bridge  in  repair: 
Portland  v.  Griffiths,  11  Can.  S.  C.  333,  on  municipality  being  liable  for  damagi 
from  nonrepair  of  highway  only  where  the  nonrepair  was  such  that  an  in- 
dictment would  lie  against  the  corporation  therefor. 

Distinguished  in  Highway  Comrs.  v.  Martin,  4  .Mich.  557,  69  Am.  Dec.  333, 
holding  towns  not  liable  for  injuries  resulting  from  defective  highways;  Albany 
v.  Cunlifl",  2  N.  Y.  165,  holding  city  not  liable  for  injury  resulting  from  negligent 
construction  of  a  bridge  built  by  it  without  authority:  Griffin  v.  New  York,  9 
N.  Y.  456,  Gl  Am.  Dec.  700,  holding  city  not  liable  for  injury  from  obstruction 
in  street,  placed  there  by  a  third  person,  and  of  which  it  had  no  notice:  Nan- 
dyke  v.  Cincinnati,  1  Disney  (Ohio)  532,  holding  city  not  liable  for  injury  from 
temporary  accumulation  of  snow  and  ice  on  sidewalk  of  which   it   had  no  notice; 


1  E.  R.  C.  601]        NOTES  ON  ENGLISH  RULING  CASES.  106 

Steele  v.  York,  15  Ont.  App.  Rep.  666,  holding  county  not  liable  for  injury  to  one 
on  unimproved  part  of  toll  road  allowance,  not  resulting  from  any  defect  or  non- 
repair of  the  toll  road  itself. 

The  decision  of  Court  6f  King's  Bench  was  cited  in  Waltham  v.  Kemper,  55  111. 
346,  8  Am.  Rep.  652,  holding  town  not  liable  for  injury  from  failure  to  keep  road 
in  repair;  Vancouver  v.  McPhalen,  45  Can.  S.  C.  194,  holding  that  municipality 
is  liable  for  injury  caused  by  its  negligence  in  failing  to  keep  its  streets  in  repair. 

The  decision  of  the  Court  of  King's  Bench  was  distinguished  in  Dwyer  v.  Port- 
land, 20  N.  B.  423,  holding  that  no  action  will  lie  against  town  for  injuries  from 
nonrepair  of  street  in  the  absence  of  statutory  obligation  to  repair. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Denver  v.  Dunsmore,  7 
Colo.  328,  3  Pac.  705;  Ericsson  v.  Manchester,  3  Hughes,  196.  Fed.  Cas.  No. 
4,511, — holding  that  municipality  may  be  held  liable  for  injury  to  individual 
caused  by  defective  street;  Navasota  v.  Pearce,  46  Tex.  525,  26  Am.  Rep.  279, 
holding  that  no  action  lies  against  municipality  by  party  who  has  suffered  in- 
jury occasioned  through  want  of  repair  of  street;  Peck  v.  Batavia,  32  Barb.  634, 
holding  that  municipal  corporation  is  not  liable  in  damages  to  individual,  for 
injuries  sustained  because  of  defective  sidewalk,  where  no  absolute  duty  to  repair 
walks  is  imposed  upon  it;  Jones  v.  New  Haven,  34  Conn.  1,  holding  that  city  was 
liable  to  one  struck  by  dead  limb  that  fell  from  tree  where  city  was  negligent; 
Ludlow  v.  Com.  147  Ky.  706,  39  L.R.A..(N.S. )  411,  145  S.  W.  405,  Ann.  Cas. 
1913D,  301,  holding  that  city  is  criminally  liable  if  its  officers  permit  one  of  its 
streets  to  become  so  out  of  repair  that  it  constitutes  public  nuisance;  Baltimore 
v.  Marriott,  9  Md.  160,  66  Am.  Dec.  326,  holding  that  person  injured  by  slipping 
upon  sidewalk  caused  by  city's  negligence  in  failing  to  remove  snow  and  ice  may 
recover  for  injury. 
—  Defective  public  works  and  buildings. 

Cited  in  Oliver  v.  Worcester,  102  Mass.  489,  3  Am.  Rep.  485,  holding  city  liable 
for  injury  from  negligence  in  caring  for  building  owned  by  it  but  used  partly 
for  renting  to  private  parties  for  profit;  Bailey  v.  New  York,  3  Hill,  531,  38  Am. 
Dec.  669,  holding  city  liable  for  injury  from  negligent  construction  of  dam  intend- 
ed for  use  in  its  water  supply  system;  Lenzen  v.  New  Braunfels,  13  Tex.  Civ.  App. 
335,  35  S.  W.  341,  holding  city  operating  waterworks  liable  for  negligently  fail- 
ing to  furnish  adequate  water  supply  to  extinguish  a  fire. 

Distinguished  in  Hill  v.  Boston,  122  Mass.  344,  23  Am.  Rep.  332,  holding  city 
not  liable  for  injury  to  pupil  attending  public  school,  for  injury  caused  by  de- 
fective stairway  in  the  school  house;  Eastman  v.  Meredith,  36  N.  H.  284,  72  Am. 
Dec.  302,  holding  town  not  liable  to  one  injured  through  the  defective  construction 
of  building  erected  by  it  for  town-house;  Hawkeshaw  v.  Dalhousie  Dist.  7  U.  C.  Q. 
B.  590,  holding  district  council  not  liable  for  injury  resulting  from  nonrepair  of 
court  house  steps  where  duty  as  to  repair  of  public  buildings  was  by  law  placed 
upon  another  officer;  Buckingham  v.  Fisher,  70  111.  121,  holding  owner  of  private 
wharf  not  liable  for  injury  resulting  from  failure  to  provide  guard  rails  on  sides 
of  wharf  where  he  owned  no  statutory  duty  to  do  so. 

The  decision  of  the  Court  of  King's  Bench  was  cited  in  Pittsburgh  v.  Grier,  22 
Pa.  54,  60  Am.  Dec.  65,  holding  city  liable  for  injury  resulting  from  its  failure  to 
keep  wharf,  exclusively  within  its  control,  in  repair;  Degan  v.  Dunlap,  39  Phila. 
Leg.  Int.  32,  15  Phila.  69,  on  rights  of  the  public  as  to  having  wharves  kept  in 
repair;  Lephron  v.  R.  4  Can.  Exch.  100,  holding  the  Crown  not  liable  for  injury 
resulting  from  failure  to  remove  or  cover  ice  gathered  on  step  of  public  build- 
ing. 


107  NOTES  ON  ENGLISH  RULING  CASES.        [1  E.  R.  C.  GUI 

The  decision  of  the  Court  of  King's  Bench  was  distinguished  in  Welsh  v.  Km 
land,  56  Yt.  228,  4S  Am.*Rep.  7G2,  holding  village  not  liable  for  injuries  resulting 
from  negligence  of  engineer  of  fire  department  in  thawing  out  a  hydrant. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Garrison  v.  New  York. 
5  Bosw.  407  (dissenting  opinion),  on  liability  for  injury  caused  by  failure  to  keep 
public  wharf  in  safe  condition;  Mendel  v.  Wheeling,  28  W.  Va.  233,  57  Am.  Rep. 
664,  holding  that  city  is  not  liable  for  damages  caused  by  its  failure  to  exercise 
its  power  in  organizing  and  regulating  waterworks. 
-—Legal  imposed  duty  or  condition  of  charter  as  source  of  liability. 

Cited  in  Browning  v.  Springfield,  17  111.  143,  63  Am.  Dee.  345 ;  Tritz  v.  I 
City,  84  Mo.  632;  Noble  v.  Richmond,  31  Gratt.  271,  31  Am.  Rep.  726;  Galveston 
v.  Posnaiusky,  62  Tex.  118,  50  Am.  Rep.  517, — holding  eitj-  existing  under  special 
charter  giving  it  control  over  its  streets,  liable  for  injury  from  defective  sidewalk: 
Rowe  v.  Portsmouth,  56  N.  H.  291,  22  Am.  Rep.  464;  New  York  v.  Furze,  3  Hill, 
612, — holding  city  having  statutory  authority  to  construct  sewers  liable  to  one 
specially  injured  by  its  failure  to  keep  them  in  repair;  Lucas  v.  Tippecanoe 
County,  44  Ind.  524  (dissenting  opinion),  on  liability  of  municipal  corporation 
as  to  duties  imposed  by  its  charter;  dissenting  opinions  in  Detroit  v.  Blackeby, 
21  Mich.  S4,  4  Am.  Rep.  450;  Bell  v.  West  Point,  51  Miss.  262, — on  municipality 
being  liable  for  injury  from  defect  in  streets  only  where  duty  to  keep  them  in 
repair  is  imposed  by  statute. 

Distinguished  in  Wallis  v.  Assiniboia,  4  Manitoba  L.  Rep.  S9,  holding  munici- 
pality not  liable  for  damages  from  defective  roads  or  bridges  in  the  absence  of 
statute  imposing  such  liability. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Rochester  White  Lead 
Co.  v.  Rochester,  3  N.  Y.  463,  53  Am.  Dec.  316,  holding  city  liable  for  damages 
from  negligent  construction  of  culvert. 

The  decision  of  the  Court  of  Common  Pleas  was  distinguished  in  Gibson  v. 
Preston,  L.  R.  5  Q.  B.  218,  10  Best.  &  S.  942,  39  L.  J.  Q.  B.  N.  S.  131,  22  L.  T. 
N.  S.  293,  18  Week.  Rep.  689,  where  duties  under  the  Public  Health  Act  as  to 
highways  were  discussed;  Bathurst  v.  Macpherson,  L.  R.  4  App.  Cas.  256,  48  L. 
J.  P.  C.  N.  S.  61,  holding  borough  charged  with  care  of  streets  liable  to  any  one 
injured  by  negligent  defect. 
—  Assumed   public   duty  of  lessees  or  contractors. 

Cited  in  Lampert  v.  Laclede  Gaslight  Co.  14  Mo.  App.  376,  holding  one  con- 
tracting with  city  to  perform  a  public  duty  liable  to  private  person  injured  by  lii^ 
negligence  in  its  performance;  Robinson  v.  Chamberlain,  34  N.  Y.  389,  90  Am. 
Dec.  713,  holding  contractor,  employed  by  the  state  to  keep  public  canal  in  re- 
pair liable,  for  neglect  of  that  duty,  to  one  specially  damaged  thereby;  Radway 
v.  Briggs,  37  N.  Y.  256,  holding  that  city's  lessee  of  wharf  was  liable  for  value 
of  horse  and  load  of  merchandise,  which,  for  want  of  suitable  guard,  had  been 
lost  by  backing  off  wharf  into  river;  R.  v.  Mills,  17  U.  C.  C.  P.  654,  holding  lessee, 
from  the  Crown,  of  toll  road  indictable  at  the  instance  of  the  public  for  failure  to 
keep  the  road  in  repair;  Winch  v.  Conservators  of  the  Thames,  L.  R.  7  C.  P.  458, 
on  duties  assumed  as  part  of  franchise  for  a  tow  path. 

Distinguished  in  Cunningham  v.  Furniss,  4  U.  C.  C.  P.  514,  holding  contractor 
supplying  hydrants  to  city  not  liable  to  individual  taxpayer  for  injury  resulting 
from  their  inadequacy  to  supply  sufficient  water  to  extinguish  a  fire;  Simpson  v. 
Atty.  Gen.  [1904]  App.  Cas.  476,  20  Times  L.  R.  761,  74  L.  J.  Ch.  N.  S.  1,  (.9  J.  P. 
85,  91  L.  T.  N.  S.  610,  3  L.  G.  R.  190,  when  the  question  was  as  to  presuming  a 
patent  imposing  a  duty  to  keep  up  locks. 


1   E.  R.  C.  001]        NOTES  ON  ENGLISH  RULING  CASES.  108 

The  decision  of  the  Court  of  King's  Bench  was  cited  in  Wendell  v.  Baxter,  12 
Gray,  494,  holding  wharf  proprietor  liable  for  injury  from  defects  if  he  failed  in 
reasonable  care;  Radway  v.  Briggs,  35  How.  Pr.  422,  holding  lessee  of  public 
wharf  liable  for  injury  resulting  from  his  failure  to  keep  proper  guard  rails 
along  its  sides.  • 

—  Pleading  duty  of  municipality. 

Cited  in  Hickok  v.  Plattsburgh,  15  Baib.  427,  holding  that  in  suit  against 
municipality  for  injury  from  defect  in  highway,  its  duty  to  keep  the  highway  in 
repair  must  be  alleged  and  proven;  Barry  v.  Port  Jervis,  64  App.  Div.  268,  72  N. 
Y.  Supp.  104,  on  necessity  of  showing  neglect  of  a  duty  for  which  the  corporation 
would  be  liable  to  an  indictment  and  special  injury  to  plaintiff  therefrom. 

The  decision  of  the  Court  of  King's  Bench  was  cited  in  Shelby  County  v.  Deprez, 
87   Ind.   509,   holding  that  complaint   for   injury   resulting   from   failure  to  keep 
bridge  in  repair  must  show  the  duty  to  keep  it  in  repair. 
Construction  of  pleading. 

Cited  in  People  v.  Braman,  30  Mich.  460,  on  words  in  pleading  an  instrument 
being   taken   to   have   the   same   meaning   as   the   same   words   in   the   instrument 
itself. 
Necessity  of  showing  special  damage  to  sue  for  breach  of  public  duty. 

Cited  in  Stetson  v.  Faxon,  19  Pick.  147,  31  Am.  Dec.  123,  holding  that  private 
person  sustaining  special  damage  for  the  obstruction  of  a  street  may  maintain 
an  action  therefor;  Rudder  v.  Koopmann,  116  Ala.  332,  37  L.R.A.  489,  22  So.  tiO  1 ; 
Myers  v.  Malcom,  6  Hill,  292,  41  Am.  Dec.  744, — holding  that  private  person  sus- 
taining special  damage  from  the  keeping  of  gunpowder  in  such  quantity  as  to 
constitute  a  public  nuisance,  may  recover  therefor;  Farrelly  v.  Cincinnati,  2  Dis-, 
ney  (Ohio)  516,  holding  that  private  action  cannot  be  maintained  for  defective 
highway  without  a  showing  of  special  damage;  St.  Paul  Water  Co.  v.  Ware,  16 
Wall.  56G,  21  L.  ed.  485;  Path  v.  Tower  Grove  &  L.  R.  Co.  105  Mo.  537,  13  L.R.A. 
74,  10  S.  W.  913;  Sawyer  v.  Rutland  &  B.  R.  Co.  27  Vt.  370,— on  right  of  private 
party  injured  through  neglect  of  public  duty  to  maintain  action  therefor;  Cline  v. 
Cornwall,  21  Grant,  Ch.  (U.  C. )  129,  holding  that  municipality  should  be  re- 
strained from  constructing  weighing  scales  on  corner  of  principal  street,  at 
suit  of  one  who  kept  store  at  such  corner,  on  ground  of  nuisance. 

Cited  in  note  in  1  Eng.  Rul.  Cas.  621,  on  right  of  action  by  individual  specially 
damaged  by  nonperformance  of  duty. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  McConnell  v.  Dewey. 
5  Neb.  385,  holding  that  action  at  common  law,  will  not  lie  against  supervisor 
of  public  roads,  by  individual  for  injury  occasioned  to  his  person  or  property,  by 
reason  of  defect  in  road  or  bridge;  McKennan  v.  Bodine,  6  Phila.  582,  25  Phila. 
Leg.  Int.  109,  holding  that  inspector  of  flour  is  liable  in  action  on  case  for  negli- 
gence to  person  injured  by  his  negligent  inspection ;  Harrison  v.  Brega,  20  U. 
C.  Q.  B.  324,  holding  that  action  for  damages  lies  against  register  for  negligent 
omission  to  mention  mortgage  in  certificate  to  plaintiff's  damage;  Walker  v. 
Halifax,  10  N.  S.  371,  holding  that  owner  of  line  of  omnibuses  may  recover  for 
injury  to  vehicles  and  loss  of  custom  caused  by  failure  of  city  to  remove  snow  and 
ice  from  street. 

The  decision  of  the  Court  of  Common  Pleas  was  distinguished  in  House  v. 
Houston  Waterworks  Co.  88  Tex.  233,  28  L.R.A.  532,  31  S.  W.  179,  holding  that 
waterworks  company  operating  under  contract  with  city  is  not  liable  at  suit  of 
property  owner  for  damages  from  fire  on  ground  that  company  had  not  kept  water 
pressure  up  to  its  contract  gauge. 


109  NOTES  ON   ENGLISH   RULING  CASES.        [1   E.  R.  C.  601 

Effect  of  acceptance  of  city  or  public  charter. . 

Cited  in  State  v.  Manchester  &  L.  R.  Co.  til)  X.  II.  :;.">.  38  Atl.  736,  on  corpora- 
tion accepting  a  charter  being  hound  by  its  provisions. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Coram  v.  St.  John,  12 
N.   B.   443,   holding  city   not   bound   by   its  charter   to   build   and   keep    in   repair 
wharves  and  sea  walls  for  the  protection  of  adjoining  lands. 
Indictment  for  violation  of  duty. 

Cited  in  Irwin  v.  Dixion,  9  How.  10,  13  L.  ed.  25,  on  indictment  as  being  the 
proper  remedy  for  violation  of  public  duty:  Stein  v.  State.  37  Ala.  123,  on  indict- 
ment for  violation  of  public  duty. 

Cited  in  4  Dillon,  Mun.  Corp.  5th  ed.  2S01,  on  remedy  by  indictment  against 
municipality. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Illinois  C.   R.  Co.  v. 
Holland,  147  Ky.  69!),  145  S.  W.  389,  holding  that  city  may  be  indicted  for  main- 
taining common   nuisance  where  it  permits  streets   to  be  dangerous   for   travel, 
although  officers  may  be  liable  to  indictment  therefor. 
—  Of  corporation  for  breach  of  charter  duty. 

The  decision  of  the  Court  of  King's  Bench  was  cited  in  Com.  v.  Hancock  Free 
Bridge  Corp.  2  Gray,  58,  holding  toll-road  corporation  liable  to  indictment  for 
failure  to  keep  the  road  in  repair;  Pittsburgh,  V.  &  C.  R.  Co.  v.  Com.  101  Pa. 
192,  12  W.  N.  C.  280,  40  Phila.  Leg.  Int.  09.  holding  that  indictment  will  lie 
against  corporation  for  violation  of  duty  imposed  by  its  charter. 
Public  duty  respecting  shores  of  sea. 

Cited  in  note  in  58  L.R.A.  757,  760,  on  levees  as  public  improvements. 

Cited  in  2  Farnham,  Waters,  1329,  1330,  on  duty  to  construct  and  maintain 
artificial  sea  walls. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Coram  v.  St.  John,  12 
N.  B.  443,  holding  city  of  St.  John  not  bound  by  charter  to  maintain  sea  wall: 
Atty.  Gen.  v.  Tomline,  L.  R.  12  Ch.  Div.  214;  Hudson  v.  Tabor.  L.  R.  2  Q.  B.  Div. 
290,  46  L.  J.  Q.  B.  N.  S.  463,  36  L.  T.  N.  S.  492,  25  Week.  Rep.  740,  on  dictum 
as  to  King's  duty  to  protect  the  shore. 
Liability  of  corporation  having-  public  grant. 

Cited  in  Dundas  v.  Hamilton  &  M.  Road  Co.  IS  Grant,  Ch.  (U.  C.)  311,  holding 
that  canal  company  which  failed  to  keep  bridge  in  repair  could  not  restrain  in- 
corporated road  company  from  erecting  fixed  bridge,  which  would  have  effect  to 
impede  navigation. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Phelps  v.  Grand  Trunk 
Nav.  Co.  12  U.  C.  Q.  B.  245,  holding  that  navigation  company  is  liable  under 
charter  for  injuries  caused  by  obstructions  in  any  part  of  natural  channel;  Hol- 
lister  v.  Union  Co.  9  Conn.  436,  25  Am.  Rep.  36,  holding  that  corporation  created 
by  state  to  remove  obstructions  from  navigable  stream  is  not  liable  for  injury  to 
adjoining  land  by  washing  away  of  bank,  where  work  was  done  in  careful  and 
prudent  manner;  Burroughs  v.  Housatonic  R.  Co.  15  Conn.  124,  38  Am.  Dec.  64. 
holding  that  railroad  company  in  absence  of  negligence  was  not  liable  for  de- 
struction by  fire  of  building  near  railroad;  Dennis  v.  Larkin,  19  Iowa,  434,  to 
the  point  that  landowner  was  entitled  to  damages  caused  by  negligent  failure  of 
corporation  to  repair  sea  wall,  which   it  was  directed  t<>  and  required  to  repair. 

Who  are  public  officers. 

Cited  in  note  in  17  L.R.A.  243,  on  who  are  public  officers. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in   People  ex  rel.  Bradley 


1  E.  E.  C.  601]       NOTES  ON  ENGLISH  RULING  CASES.  110 

v.  Stevens,  51  How.  Pr.  103,  to  the  point  that  every  office  is  considered  public, 
duties  of  which  concern  public;  Dempsey  v.  New  York  C.  &  H.  R.  E.  Co.  146  N. 
Y.  290,  40  N.  E.  867,  holding  that  person  appointed  to  office  of  railroad  police- 
man, under  Eailroad  Law,  is  public  officer  within  meaning  of  constitution  pro- 
hibiting acceptance  of  free  pass  from  corporation;  People  ex  rel.  Kelly  v.  Brook- 
lyn, 77  N.  Y.  503,  33  Am.  Eep.  659,  holding  that  representative  in  Congress  holds 
"public  office"  within  meaning  of  charter  of  city  of  Brooklyn,  which  prohibits 
alderman  from  holding  any  other  public  office;  Conner  v.  New  York,  2  Sandf.  355, 
holding  that  public  officer  is  agent  elected  or  appointed  to  perform  certain  politi- 
cal duties  in  administration  of  government;  Archibald  v.  Haldan,  30  U.  C.  Q. 
B.  30,  to  the  point  that  every  one  who  is  appointed  to  discharge  public  duty  and 
receives  compensation,  is  constituted  public  officer;  People  v.  Hayes,  7  How.  Pr. 
248,  holding  that  commissioners  appointed  by  act  of  legislature  to  lay  out  and 
build  road  for  use  of  public,  are  public  officers;  Michael  v.  State,  163  Ala.  425, 
.10  So.  929,  holding  that  office  of  city  treasurer  is  public  office;  Foltz  v.  Kerlin,  105 
Ind.  221,  55  Am.  Eep.  197,  4  N.  E.  439,  holding  that  postmasters  are  Federal 
officers  under  provision  of  state  constitution;  Bicker's  Petition,  66  N.  H.  207,  24 
L.E.A.  740,  29  Atl.  559,  holding  that  member  of  bar  is  not  public  officer,  for 
which  women  are  disqualified  by  common  law. 
—  Liability  for  misfeasance  or  nonfeasance. 

Cited  in  note  in  22  L.E.A.  830,  835,  on  personal  liability  of  highway  officers  for 
negligence. 

Cited  in  1  Thomas,  Neg.  2d  ed.  77,  on  liability  of  public  officer  for  failure  to 
keep  highway  in  repair. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Hover  v.  Barkhoof,  44 
N".  Y.  113,  holding  that  public  officers  whose  duties  are  not  judicial,  are  answer- 
able in  damages  to  any  one  specially  injured  by  negligent  performance  of, 
or  omission  to  perform  duties  of  office;  Sells  v.  Dermody,  114  Iowa,  344,  86  N. 
W.  325,  holding  that  fact  that  person  elected  road  supervisor  is  subject  to  penalty 
for  refusing  to  accept  office  does  not  relieve  such  officer  from  individual  liability 
for  negligence  in  failing  to  keep  road  in  repair. 

The  decision  of  the  Court  of  Common  Pleas  was  distinguished  in  Williams  v. 
Adams,  3  Allen,  171,  holding  that  prisoner  cannot  maintain  action  against  master 
of  house  of  correction  for  neglect  to  provide  him  with  sufficient  food  if  he  is  kept 
in  usual  way  and  there  is  no  evidence  of  express  malice,  or  of  such  gross  neg- 
ligence as  to  imply  malice. 
Amendment  of  verdict. 

The  decision  of  the  Court  of  Common  Pleas  was  cited  in  Baldwin  v.  Henderson, 
4  U.  C.  Q.  B.  361,  holding  that  where  plaintiff  has  general  verdict  upon  record 
containing  several  counts  and  defendant  moves  to  arrest  judgment  on  ground 
that  some  of  counts  are  defective  if  evidence  applies  equally  to  good  and  bad 
counts  verdict  may  be  amended  by  confining  it  to  good  count. 
Liability  for  breach  of  duty. 

Cited  in  Congreve  v.  Morgan,  4  Duer,  439,  holding  that  owner  of  premises  is  not 
liable  for  injury  to  child  of  tenant  caused  by  breaking  of  stone  covering  of  vault, 
in  absence  of  proof  of  negligence. 

1  E.  E.  C.  623,  HAMMERSMITH  E.  CO.  v.  BRAND,  L.  R.  4  H.  L.  171.  21  L.  T. 

N.  S.  238,  IS  Week.  Rep.  12,  38,  L.  J.  Q.  B.  N.  S.  265. 
Liability  of  railroad  company  for  damages  arising-  from  use  of  railway. 

Cited  in  Austin  v.  Augusta  Terminal  R.  Co.  10S  Ga.  671,  47  L.R.A.  755,  34  S. 


Ill  NOTES  ON  ENGLISH  RULING  CASES.       [1  E.  R.  C.  623 

E.  852;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Armstrong,  71  Kan.  366,  1  L.R.A.(N.S.) 
113,  114  Am.  St.  Rep.  474,  80  Pac.  97S;  Pennsylvania  R.  Co.  v.  Marchant,  119 
Pa.  541,  4  Am.  St.  Rep.  659,  13  Atl.  690,  21  W.  N.  C.  300,  45  Phila.  Leg.  Int. 
196;  Fisher  v.  Seaboard  Air  Line  R.  Co.  102  Va.  363,  46  S.  E.  381,  1  Ann.  Cas. 
622, — holding  that  a  railroad  company  authorized  by  law  is  not  liable  to  an  ad- 
jacent landowner  for  damages  resulting  from  noises,  jarring  and  shaking  of  build- 
ings, dust  and  smoke  incident  to  the  running  of  trains;  Qnillinan  v.  Canada 
Southern  R.  Co.  6  Ont.  Rep.  567,  on  the  necessity  of  a  railway  company  giving 
compensation  to  owners  of  land  abutting  on  street  where  railway  is  operated; 
St.  Catharines  R.  Co.  v.  Norris,  17  Ont.  Rep.  GG7,  holding  that  a  person  could  not 
recover  for  loss  of  custom  at  his  mill  caused  by  the  operation  of  a  railroad;  Re 
Devlin,  40  U.  C.  Q.  B.  160,  holding  that  under  the  railroad  act,  a  person  owning 
a  house  along  a  street  upon  which  a  railroad  was  constructed  could  not  re- 
cover for  damages  resulting  from  vibration  resulting  in  no  structural  injuries; 
Powell  v.  Toronto,  H.  &  B.  R.  Co.  25  Ont.  App.  Rep.  209,  holding  same,  unless 
compensation  was  fixed  and  allowed  by  the  act  giving  permission  to  use  the 
street  for  railway  purposes;  Re  Canada  Southern  R.  Co.  41  U.  C.  Q.  B.  195; 
Pion  v.  North  Shore  R.  Co.  14  Can.  S.  C.  677, — on  compensation  for  injury  from 
railroad  when  no  part  of  the  claimant's  land  is  taken;  Canadian  P.  R.  Co.  v 
Roy,  Rap.  Jud.  Quebec,  12  B.  R.  543,  holding  railway  company,  authorized  by  stat- 
ute, not  liable  for  injury  resulting  from  the  operation  of  the  railway,  in  the  ab- 
sence of  negligence. 

Cited  in  notes  in  17  L.R.A.(N.S.)  1056,  on  smoke,  noise,  etc.,  incident  to  ordi- 
nary operation  of  railroad  as  a  "damaging"  of  property  within  constitutional 
provision  for  compensation;  1  Eng.  Rul.  Cas.  596,  597,  on  right  to  compensation 
for  damages  from  operation  of  railway. 

Distinguished  in  Baker  v.  Boston  Elev.  R.  Co.  1S3  Mass.  17S,  66  N.  E.  711, 
holding  that  noise  arising  from  the  operation  of  a  railroad  causes  such  injury  to 
adjoining  property,  that  it  may  be  recovered  for  under  the  statute  of  that  state: 
Cogswell  v.  New  York,  N.  H.  &  H.  R.  Co.  103  N.  Y.  10,  57  Am.  Rep.  701,  8  N.  E. 
537,  holding  railroad  liable  for  injury  to  adjoining  owner  from  soot,  coal  dust 
and  cinders  from  its  coal  house,  though  it  had  authority  to  construct  and  operate 
its  road;  Gainesville,  H.  &  W.  R.  Co.  v.  Hall,  78  Tex.  169,  9  L.R.A.  208,  22  Am. 
St.  Rep.  42,  14  S.  W.  259,  holding  railroad  company  liable  for  injury  from  the 
construction  and  operation  of  its  road  though  no  part  of  the  claimant's  land  was 
taken;  Re  Birely,  28  Ont.  Rep.  468,  holding  that  under  the  railroad  law  of  that 
province,  a  person  owning  property  along  a  street  upon  which  was  operated  a 
railroad,  was  entitled  to  damages,  although  no  part  of  his  land  was  taken;  R.  v. 
Barry,  2  Can.  Exch.  333,  holding  adjoining  owner  entitled  to  compensation  where 
access  to  the  land  was  interfered  with  and  its  frontage  on  the  street  destroyed 
by  the  construction  of  a  railway  siding  along  the  sidewalk ;  Renaud  v.  De  Quebec, 
8  Quebec  L.  R.  102,  holding  damages  recoverable  under  statute  for  inconveniences 
caused  property  owner  by  operation  of  railroad. 
—  For  fires  started  by  its  engines. 

Cited  in  St.  Louis  &  S.  F.  R.  Co.  v.  Mathews,  165  U.  S.  1,  41  L.  ed.  611,  17  Sup. 
Ct.  Rep.  243,  on  the  liability  of  a  railroad  company  for  fires  set  by  its  engines, 
where  company  was  authorized  by  law;  H.  &  T.  C.  R.  Co.  v.  McDonough,  1  Tex. 
App.  Civ.  Cas.  (White  &  W.)  354;  Missouri,  K.  &  T.  R.  Co.  v.  Wilder,  3  Ind. 
Terr.  85,  53  S.  W.  490, — holding  that  a  railroad  company  authorized  by  a  law  is 
not  liable  for  fires  started  from  sparks  from  their  engines,  in  the  absence  of  neg- 
ligence;  Furlong  v.  Carroll,  7  Ont.  App.  Rep.  145.  on  the  liability  of  a  railroad 


1  E.  R.  C.  623]        NOTES  ON  ENGLISH  RULING  CASES.  112 

company  for  fires  started  by  fires  from  its  engines,  where  the  company  is  licensed 
by  statute  to  use  them;  Oatman  v.  Michigan,  C.  R.  Co.  1  Ont.  L.  Rep.  145, 
holding  that  a  railroad  company  was  not  liable  for  fires  set  by  sparks  from  its 
engines  unless  it  was  negligent;  Jaffrey  v.  Toronto,  G.  &  B.  R.  Co.  23  U.  C.  C.  P. 
553,  on  the  liability  of  a  railway  company  for  fires  caused  by  an  accumulation  of 
rubbish  along  their  right  of  way. 

Cited  in  note  in  23  L.  ed.  U.  S.  357,  on  liability  of  railroad  company  for  fires 
set  by  it  along  its  line. 

Distinguished  in  Canadian  P.  R.  Co.  v.  Roy,  Rap.  Jud.  Quebec,  12  B.  R.  543 
(reversing  Rap.  Jud.  Quebec,  9  B.  R.  551),  holding  that  a  railroad  company  was 
not  liable  for  fires  started  by  its  engines  unless  it  was  negligent;  Wealleams  v. 
Canada  S.  R.  Co.  21  Ont.  App.  Rep.  297,  holding  that  a  foreign  railroad  com- 
pany operating  over  the  lines  of  a  domestic  company  is  subject  to  the  common- 
law  liability  for  fire  set  by  its  engines,  unless  licensed  by  law. 
—  Of  owners  of  steam  engines. 

Cited  in  Brewer  v.  Humble,  26  N.  B.  495,  holding  that  where  the  owner  of  a 
steam  mill  was  bound  by  a  covenant  to  keep  the  mill  in  operation,  he  was  not 
liable  for  the  destruction  of  an  adjoining  building  by  sparks,  unless  he  was  negli- 
gent. 
Construction  of  words  "by  reason  of  the  railway"  as  used  in  statutes. 

Cited  in  Levesque  v.  New  Brunswick  R.  Co.  29  N.  B.  588  (dissenting  opinion), 
on  the  meaning  of  the  words,  "by  reason  of  the  railway"  as  used  in  the  railway 
statutes;  May  v.  Ontario  &  Q.  R.  Co.  10  Ont.  Rep.  70,  holding  that  any  damage 
done  by  reason  of  negligence  in  the  operation  of  a  railroad  in  the  carriage  of 
passengers  is  damage  "by  reason  of  the  railway"  under  the  statute;  McCallum 
v.  Grand  Trunk  R.  Co.  30  U.  C.  Q.  B.  122,  holding  that  a  fire  started  by  coals 
dropped  from  an  engine  was  an  injury  sustained  "by  reason  of  the  railway"  so 
as  to  be  barred  by  the  lapse  of  the  limited  time  under  the  statute. 
Damages  for  injuries  resulting  from  act  authorized  by  legislative  en- 
actment. 

Cited  in  Rigney  v.  Chicago,  102  111.  64,  on  nonliability  at  common  law  for  in- 
jury from  act  done  without  negligence  and  pursuant  to  statutory  authority;  Lin- 
coln v.  Com.  164  Mass.  368,  41  N.  E.  489,  holding  that  if  the  legislature 
authorizes  something  to  be  done  in  a  neighborhood  of  a  person's  land  which  di- 
minishes its  value,  but  would  not  have  been  actionable  at  common  law  if  done  by 
a  neighbor,  and  the  statute  does  not  award  compensation,  he  cannot  claim  any; 
Baker  v.  Boston  Elev.  R.  Co.  183  Mass.  170,  66  N.  E.  711,  on  right  of  action  for  a 
nuisance  as  the  test  of  liability  for  act  done  under  authority  of  statute;  Sayre 
v.  Newark,  60  N.  J.  Eq.  361,  48  L.R.A.  722,  83  Am.  St.  Rep.  629,  45  Atl.  985, 
holding  that  the  legislature  had  the  authority  to  authorize  a  city  to  use  a  tidal 
stream  to  carry  off  sewage,  and  if  private  property  along  it  depreciated  in  value, 
there  could  be  no  compensation  therefor;  Atlantic  Coast  Line  R.  Co.  v.  Golds- 
boro,  155  N.  C.  356,  71  S.  E.  514,  to  the  point  that  no  court  can  treat  that  as 
wrong  which  legislature  has  authorized;  Sawyer  v.  Davis,  136  Mass.  239,  49  Am. 
Rep.  27;  Spencer  v.  Point  Pleasant  &  O.  River  R.  Co.  23  W.  Va.  406, — on  non- 
liability, in  the  absence  of  negligence,  for  injury  resulting  from  the  doing  of  acts 
authorized  by  statute ;  Canadian  P.  R.  Co.  v.  Parke,  6  B.  C.  6.  holding  that  owner 
of  water  privilege  for  irrigation  purposes  is  not  liable  for  unavoidable  injuries 
incident  to  exercise  of  statutory  rights ;  Leahy  v.  Sydney,  37  Can.  S.  C.  464,  hold- 
ing that  if  a  municipality  is  authorized  to  carry  on  a  business  not  only  is  it  pro- 
tected against  liability  for  damages  arising  as  necessary  and  unavoidable,  but 


113  NOTES  ON  ENGLISH  RULING   (ASKS.        [1    E.   11.  C.  62:$ 

which  but  for  being  authorized  would  have  sustained  a  cause  of  action  therefor: 
St.  John  v.  Pattison,  Cameron  (Can.)  537,  holding  that  where  the  statute  gave  i 
city  authority  to  alter  the  level  of  its  streets,  there  was  no  limitation  on  its  right 
to  do  so  except  that  it  did  not  make  them  a  public  nuisance,  and  there  could  be 
damages  recovered  because  of  an  alteration;  McMillan  v.  Southwest  Boom  Co.  17 
N.  B.  715,  holding  that  a  boom  company  authorized  by  law  to  build  and  main- 
tain a  boom  was  not  liable  for  damages  for  obstructing  navigation  unlc.-s  it  was 
negligent;  Lirette  v.  Moncton,  36  N.  B.  475,  holding  that  in  constructing  a  sewer 
which  was  authorized  by  law,  a  city  was  not  liable  for  damages  incurred  by  the 
sewer,  unless  the  city  has  exceeded  its  authority  or  has  been  negligent;  McArthur 
v.  Collingwood,  9  Ont.  Rep.  3G8,  holding  that  claim  for  damages  from  overllou 
caused  by  insufficiency  of  a  sewer,  is  not  one  for  compensation  under  municipal 
act;  Garfield  v.  Toronto.  22  Ont.  App.  Rep.  128,  holding  that  where  an  act  was 
authorized  by  law,  the  party  doing  it  was  not  liable  for  necessary  resulting  in- 
juries to  other  property  unless  he  was  negligent:  Holliday  v.  Wakefield  Corp. 
[1891]  A.  C.  81,  60  L.  J.  Q.  B.  N.  S.  36],  64  L.  T.  N.  S.  1,  40  Week.  Rep.  129, 
55  J.  P.  325,  17  Eng.  Rul.  Cas.  622,  suggesting  that  a  clause  was  put  into  an 
enabling  act  to  forestall  the  argument  that  consequential  damages  from  a  legal- 
ized act  could  not  be  recovered 

Cited  in  note  in  1  Eng.  Rul.  Cas.  302.  306,  on  nonliability  of  public  associations 
or  corporations  for  accidents  occurring  through  use  of  statutory  powers. 

Distinguished  in  Dow  v.  Northern  R.  Co.  67  N.  H.  1,  36  Atl.  510,  holding  that 
under  the  constitution  the  legislature  cannot  authorize  the  doing  of  an  act  which 
would  amount  to  a  taking  of  private  property  without  compensation;  Brown 
v.  Bathurst  Electric  &  Water  Power  Co.  3  N.  B.  Eq.  543,  holding  that  legislative 
authority  to  do  an  act  is  not  a  defense  to  an  action  for  injury  resulting  there- 
from where  the  act  is  negligently  performed;  Davie  v.  Montreal  Water  &  P.  Co. 
Rap.  Jud.  Quebec  23  C.  S.  14],  holding  that  a  water  company  authorized  by  law 
to  erect  and  maintain  a  water  system,  was  liable  to  the  owners  of  property 
adjacent  to  their  pumping  station  for  damages  caused  by  noise  and  vibration. 
Damages  for  injuries  from  legalized  nuisances. 

Cited  in  Sawyer  v.  Davis,  130  Mass.  239,  49  Am.  Rep.  27,  holding  that  where 
the  legislature  authorized  the  blowing  of  factory  whistles  and  ringing  of  bells, 
the  same,  though  a  nuisance  otherwise,  became  legal;  Cogswell  v.  New  York,  N. 
H.  &  H.  R.  Co.  103  N.  Y.  10,  57  Am.  Rep.  70],  8  N.  E.  537,  on  the  authority  of  the 
legislature  to  authorize  the  doing  of  that  which  would  without  authority  be  a 
nuisance;  H.  &  T.  C.  R.  Co.  v.  McDonough,  1  Tex.  App.  Civ.  Cas.  (White  &  W.i 
354;  Spencer  v.  Point  Pleasant  &  O.  River  R.  Co.  23  W.  Va.  406, — holding  that 
where  a  person  or  corporation  is  authorized  by  the  legislature  to  do  an  act  which 
but  for  the  authority  would  have  been  a  nuisance  they  are  protected  from  all  lia 
bility  provided  they  do  not  act  negligently;  Hopkin  v.  Hamilton  Electric  Light 
&  Cataract  Power  Co.  2  Ont.  L.  Rep.  240,  holding  that  electric  power  company. 
without  authority  to  condemn  land,  is  liable  for  damages  caused  to  adjoining 
property  by  vibration  resulting  from  operation  of  engines  in  power  house;  Metro- 
politan Asylum  v.  Hill,  6  App.  Cas.  193.  50  L.  J.  Q.  B.  N.  S.  353,  44  L.  T.  N.  S. 
653.  29  Week.  Rep.  617,  45  J.  P.  664,  16  Eng.  Rul.  Cas.  556,  holding  enabling 
power  to  do  what  might  become  a  nuisance  was  not  a  statutory  protection  like 
a  positive  direction  to  do  it;  London,  B.  &  S.  C.  R.  Co.  v.  Truman,  11  App.  Cas. 
45,  55  L.  J.  Ch.  N.  S.  354,  54  L.  T.  N.  S.  250,  34  Week.  Rep.  657,  50  J.  P.  388,  22 
Eng.  Rul.  Cas.  80,  holding  it  was  not  actionable  to  locate  cattle  yards  on  pur- 
chased lands,  it  being  done  by  parliamentary  authority,  though  because  of  prox- 
Notes  on  E.  R.  C— 8. 


1  E.  R.  C.  623]        NOTES  ON  ENGLISH  RULING  CASES.  114 

imity  to  plaintiff's  land  it  might  at  common  law  have  been  a  nuisance; 
Canadian  Pacific  R.  Co.  v.  Parke  [1899]  App.  Cas.  535,  68  L.  J.  P.  C.  N.  S.  89, 
22  Eng.  Rul.  Cas.  99  (reversing  6  B.  C.  6),  holding  permissive  authority  to  make 
irrigation  works  did  not  deprive  a  railway  company,  whose  embankment  was 
injured  by  the  water,  of  a  right  of  action. 

Cited  in  notes  in  1  L.R.A.  (N.S.)  60,  on  effect  of  legislative  authority  upon 
liability  for  private  nuisance;  16  Eng.  Rul.  Cas.  580,  582,  583,  on  local  or  statu- 
tory authority  as  justification  for  a  nuisance;  19  E.  R.  C.  273,  on  statutory  au- 
thority as  justification  for  nuisance. 

Distinguished  in  Montreal  Street  R.  Co.  v.  Gareau,  Rap.  Jud.  Quebec,  10  B. 
R.  417,  where  local  laws  relative  to  liability  of  corporation  authorized  by  legis- 
lature to  carry  on  business   in  nature  of  nuisance  for  damages  caused  thereby 
differed  from  those  of  England  written  in  French. 
Compensation  for  private  property  taken  for  a  public  use. 

Cited  in  McRae  v.  Toronto  &  N.  R.  Co.  22  U.  C.'C.  P.  1,  on  the  compensation 
to  owners  of  property  affected  by  the  working  of  a  railway;  Re  Collins,  42  U.  C. 
Q.  B.  378,  on  the  award  of  compensation  where  private  property  is  taken  for  a 
public  use  under  .statutory  authority;  Re  Scott,  6  Manitoba  L.  Rep.  193,  hold- 
ing that  compensation  for  right  of  way  for  railroad  should  be  difference  between 
value  of  land  as  it  existed  before,  and  of  remaining  portion  after  construction 
of  railroad;  Vezina  v.  R.  17  Can.  S.  C.  1,  holding  that  compensation  for  the 
taking  of  land  by  railway  company  includes  damages  from  the  operation  as  well 
as  from  the  construction  of  the  railroad;  Grand  Trunk  P.  R.  Co.  v.  Ft.  William, 
43  Can.  S.  C.  412,  holding  that  board  of  railway  commissioners  on  application  to 
construct  railway  en  highway  had  power  to  impose  condition  directing  that 
compensation  should  be  made  to  abutting  owners. 

Distinguished  in  Gainesville,  H.  &  W.  R.  Co.  v.  Hall,  78  Tex.  169,  9  L.R.A. 
298,  22  Am.  St.  Rep.  42,  14  S.  W.  259,  holding  that  under  the  constitution  of 
the  state,  the  land  owner  whose  land  is  injured  by  the  construction  and  opera- 
tion of  a  railroad  is  entitled  to  compensation,  though  no  part  of  his  land  is 
taken. 

—  Award  as  cutting  off  compensation   for  injuries  resulting  from  subse- 

quent use  of  property  taken. 
Cited  in  McArthur  v.  Collingwood  Corp.  9  Ont.  Rep.  368,  holding  that  where 
a  municipal  drain  has  been  constructed  and  in  operation,  the  person  damaged 
by  reason  of  its  being  inadequate  can  not  resort  to  arbitration  under  the  con- 
demnation act  authorizing  it  for  compensation  for  the  injury. 

—  Elements  to  be  considered  in  fixing  same. 

Cited  in  Shenandoah  Valley  R.  Co.  v.  Shepherd,  26  W.  Va.  672,  holding 
that  damages  for  injury  to  trade  should  not  be  considered  in  awarding  com- 
pensation for  land  taken  by  a  railroad;  Pion  v.  North  Shore  R.  Co.  14  Can.  S. 
C.  677  (dissenting  opinion),  on  the  right  of  an  owner  to  compensation  where 
no  part  of  his  land  is  taken  but  his  injury  is  a  personal  one  and  not  to  the 
land;  Vezina  v.  R.  17  Can.  S.  C.  1,  holding  that  damages  awarded  as  compensa- 
tion for  the  taking  of  land  under  the  Canadian  railway  law,  include  all 
damages  resulting  from  its  operation  as  well  as  the  construction  of  the  rail- 
road; Paradis  v.  R.  1  Can.  Exch.  191,  holding  that  where  no  part  of  land  is 
taken,  damages  to  a  man's  trade  or  business  or  any  damage  not  arising  out  of 
land  itself  are  not  grounds  of  compensation:  R.  v.  Barry,  2  Can.  Exch.  333,  on 
whether  compensation  is  to  be  awarded  for  injurious  affection  of  property  arising 
from  a  user  of  the  works  authorized  by  statute;    Re  Scott,  6  Manitoba  L.  Rep. 


115  NOTES  ON  ENGLISH  RULING   (  ASES.        LI  E.  R.  C.  667 

193,  holding  that  compensation  was  correctly  allowed  for  depreciation  in  the 
value  of  the  land  not  taken,  occasioned  hy  the  anticipation  of  the  subsequent 
user  of  the  railroad  on  the  land  taken;  Great  Western  R.  Co.  v.  Warner,  19  Grant, 
Ch.  (U.  C.)  506,  holding  that  in  fixing  the  compensation  for  land  taken  for 
railway  purposes,  it  is  right  that  matters  other  than  the  mere  value  of  the 
land  taken,  should  be  considered;  Re  Canada  Southern  R.  Co.  41  U.  C.  Q.  B. 
195,  holding  that  in  fixing  the  value  of  land  to  be  taken  for  a  deviation,  the 
value  of  the  land  with  the  old  line  is  to  be  considered  and  not  the  original 
value. 

Cited  in  2  Elliott  Railr.  2d  ed.  623,  on  matters  to  be  considered  in  estimating 
damages  for  taking  of  land  for  railroad. 

Distinguished  in  Buccleuch  v.  Metropolitan  Board  of  Works,  L.  R.  5  H.  L. 
418,  41  L.  J.  Exch.  N.  S.  137,  L.  R.  5  Exch.  221,  39  L.  J.  Exch.  N.  S.  130,  L.  R. 
3  Exch.  306,  37  L.  J.  Exch.  N.  S.  177,  3  Eng.  Rul.  Cas.  455,  holding  damage  for 
noise,  vibration,  and  the  like  might  be  included  where  part  of  the  property  was 
taken. 

Heading  to  different  portions  of  statute  as  key  to  construction  of  doubt- 
ful parts. 

Cited  in  Vezina  v.  Reg.  17  Can.  S.  C.  1;  Victoria  v.  Union  Club,  3  B.  C.  363; 
Re  Bell-Irving,  4  B.  C.  219;  Corbin  v.  Lookout  Min.  &  Mill.  Co.  5  B.  C.  281; 
R.  v.  Brooks,  9  B.  C.  13,  1  B.  R.  C.  725;  Davidge  v.  Kirby,  10  B.  C.  231: 
R.  v.  Connor,  2  Manitoba  L.  Rep.  235,  1  Terr.  L.  Rep.  4;  Moran  v.  O'Regan,  38 
N.  B.  399;  R.  ex  rel.  Carr  v.  Cutlibert,  1  Ont.  L.  Rep.  211;  R.  v.  Shand,  7  Ont 
L.  Rep.  190;  Toronto,  H.  &  B.  R.  Co.  v.  Simpson  Brick  Co.  17  Ont.  L.  Rep.  632,— 
holding  that  the  headings  of  the  different  portions  of  a  statute  are  to  be  referred 
to  as  a  part  of  the  statute  to  determine  the  sense  in  cases  of  doubtful  meaning; 
Toronto  v.  Toronto  R.  Co.  C.  R.  [1907]  A.  C.  96;  Fraser  v.  Hemming,  [1911] 
St.  R.  Qd.  144;  Robinson  v.  Canadian  Northern  R.  Co.  19  Manitoba  L.  Rep. 
300, — to  the  point  that  headings  of  sections  of  act  are  regarded  as  furnishing 
key  to  clauses  ranged  under  such  headings;  Lawrie  v.  Rathbun,  38  N.  C.  Q.  B. 
255,  holding  that  the  divisions  of  a  statute  under  which  the  clauses  are  ar- 
ranged and  classified  may  be  looked  to  as  affording  a  key  to  construction,  where 
language  is  doubtful. 

Distinguished  in  Sewell  v.  British  Columbia  Towing  &  Transp.  Co.  9  Can.  S. 
C.  527,  holding  that  where  the  terms  of  the  statute  are  not  doubtful  or  repug- 
nant, the  headings  are  not  to  be  referred  to  as  governing  the  body  of  the  act. 
Use  of  averages  in  estimating  amounts. 

Cited  in  LeRoi  Co.  No.  2  v.  Northport  Smelting  &  Ref.  Co.  10  B.  C.  138, 
holding  that  where  the  smelter  man  having  sampled  ore  by  a  method  other  than 
the  one  provided  by  contract,  he  can  not  complain  if  the  method  used  by  the  court 
in  striking  an  average  amount  results  more  advantageously  to  the  mine  owner. 
Construction  against  party  leaving  matter  in  doubt. 

Cited  in  note  in  2  Eng.  Rul.  Cas.  755,  on  construing  ambiguous  instrument  most 
strongly  against  grantor. 

1  E.  R.  C.  667,  BRADLAUGH  v.  CLARKE,  48  L.  T.  N.  S.  681,  31  Week.  Rep. 
077,  L.  R.  8  App.  Cas.  354,  52  L.  J.  Q.  B.  Div.  N.  S.  505,  47  J.  P.  405,  Re- 
versing the  decision  of  the  Court  of  Appeal,  reported  in  L.  R.  7  Q.  B.  Div. 
38,  45  J.  P.  4S4. 

Right  of  recovery  of  penalty  imposed  by  statute. 

Cited  in  Duval  v.  De  St.  Alexandre,  Rap.  Jud.  Quebec,  24  S.  C.  271,  on  the 

sole  right  of  the  crown  to  recover  a  penalty  imposed  by  statute. 


1  E.  R.  C.  667J        NOTES  ON  ENGLISH  RULING  CASES.  116 

Distinguished  in  Maires  v.  Baltimore  &  0.  R.  Co.  73  App.  Div.  265,  76  N.  Y. 
Supp.  838,  holding  that  where  the  violation  of  the  statute  imposing  the  duty, 
amounts  to  a  felony  no  cause  of  action  arises  to  a  private  person. 

—  Action  on  behalf  of  state. 

Cited  in  Hand  v.  Warren,  7  B.  C.  42,  holding  that  under  the  mining  law  aa 
action  to  set  aside  a  certificate  of  improvements  must  be  maintained  by  the  At- 
torney General  on  behalf  of  the  state;  Dixon  v.  Fairer  L.  R.  17  Q.  B.  Div.  658, 
holding  that  in  an  action  by  the  attorney  general  on  behalf  of  the  crown,  the  ac- 
tion proceeds  the  same  as  an  action  by  an  individual  and  the  crown  is  entitled 
to  the  same  privileges. 

—  By  common  informer. 

Cited  in  Shrigley  v.  Taylor,  4  Ont.  Rep.  396,  holding  that  where  the  statute 
gave  the  right  to  recover  a  penalty  to  any  one  who  would  sue  for  the  same,  any 
offender  can  be  sued  by  any  one,  who  may  be  a  common  informer. 

—  By  more  than  one  party. 

Cited   in  Chaput  v.  Robert,   14  Ont.  App.   Rep.   354,  holding  that  where   the 
statute  gave  the   right   of   action   to  any  person  who  may  sue,  more  than  one 
person  might  join  as  plaintiffs  to  recover  the  penalty. 
Who  is  a  common  informer. 

Cited  in  Garrett  v.  Roberts,  10  Ont.  App.  Rep.  650,  holding  that  one  suing  for 
a  penalty  given  under  the  election  statutes,  is  a  common  informer. 
Nature  of  action  to  recover  penalty. 

Cited  in  Atty.  Gen.  v.  Bradlaugh,  L.  R.  14  Q.  B.  Div.  667,  54  L.  J.  Q.  B.  N.  S. 
401,  52  L.  T.  N.   S.  5S9,  33   Week.  Rep.  673,   49  J.  P.  500    (separate  opinion) 
holding  an  action  by  the  attorney  general  to  recover  a  penalty  for  voting  in  the 
house  of  commons  without  taking  an  oath  was  a  civil  action. 
Construction  of  statutes. 

Cited  in  Winnipeg  v.  Brock,  20  Manitoba  L.  Rep.  669,  to  the  point  that  in 
construction  of  statute  adherence  should  be  had  to  ordinary  meaning  of  worde, 
unless  that  is  at  variance  with  intent  of  legislature,  to  be  collected  from  stat- 
ute itself  as  leads  to  any  manifest  absurdity,  in  which  case  language  may  be 
varied. 

Cited  in  note  in  14  Eng.  Rul.  Cas.  831,  on  rules  for  interpretation  of  statute. 

—  By  reference  to  statutes  repealed. 

Cited  in  Robson  v.  Regina,  4  Terr.  L.  Rep.  80,  on  the  interpretation  of  stat- 
utes; Montreal  &  St.  L.  Light  &  P.  Co.  v.  Robert,  C.  R.  [1906]  A.  O.  227  (re- 
versing Rap.  Jud.  Quebec  25  S.  C.  473)  to  the  point  reference  to  statute  wholly 
repealed  is  not  safe  for  purpose  of  finding  out  meaning  of  substituted  statute; 
Bradlaugh  v.  Gossett  L.  R.  12  Q.  B.  Div.  271,  53  L.  J.  Q.  B.  N.  S.  209,  53  L.  T. 
N.  S.  620,  32  Week.  Rep.  552,  on  the  interpretation  of  statutes  by  the  courts  in- 
stead of  the  body  enacting  them. 

1  E.  R.  C.  082,  ST.  PANCRAS  v.  BATTERBURY.  2  C.  B.  N.  S.  477,  3  Jur.  N.  S. 

1106,  26  L.  J.  C.  P.  N.  S.  243. 
Kxclusiveness  of  remedy  provided  by  statute. 

Cited  in  Bigelow  v.  Nickerson,  30  L.R.A.  336,  17  C.  C.  A.  1,  34  U.  S.  App.  261, 
70  Fed.  113  (dissenting  opinion)  ;  Cape  Breton  v.  McKay,  18  Can.  S.  C.  639, — 
on  the  restriction  to  statutory  remedies  where  new  obligation  is  created  by  stat- 
ute; Askew  v.  Myrick,  54  Ala.  30;  Janney  v.  Buell,  55  Ala.  408;  Bath  v.  Miller, 
5  Me.  341;  Ex  parte  Eagles,  13  N.  B.  51;  Vassie  v.  Vassie,  22  N.  B.  76;   Cruise 


117      .  NOTES  ON    ENGLISH  RULING  CASKS.        |1  E.  R.  C.  686 

v.  Moncton,  35  N.  B.  249;  Crombie  v.  Jackson,  34  U.  C.  Q.  B.  575,— holding  that 
when  a  new  obligation  is  created,  and  a  remedy  given,  by  statute,  that  is  the 
only  one;  Ryan  v.  llawes,  12  N.  S.  595,  to  the  point  that  where  right  and  remedy 
are  both  created  by  legislature,  statutory  remedy  alone  can  be  pursued;  Vandecar 
v.  East  Oxford,  3  Ont.  App.  Rep.  131,  to  the  point  that  where  right  is  created  by 
statute,  remedy  prescribed  by  statute  and  no  other  can  be  pursued;  European  k. 
N.  A,  R.  Co.  v.  Thomas,  14  N.  B.  42,  holding  same  as  to  pecuniary  obligation; 
Murray  v.  Dawson,  17  U.  C.  C.  P.  580,  holding  that  where  the  statute  provided  .. 
remedy  for  a  failure  to  complete  a  public  ditch,  that  remedy  must  be  followed  or 
no  recovery  can  be  had. 

Cited  in  note  in  34  L.R.A.  730.  on  right  to  enforce  stockholder's  liability  out- 
side  of    state   of    incorporation. 

Cited  in  Constantineau  Defacto  Doc.  645,  on  effect  of  statutory  proceedings  to 
try  validity  of  elections  on  right  to  quo  warranto. 

Distinguished  in  Eastern  Judicial  Board  v.  Winnipeg,  3  Manitoba  L.  Rep.  537, 
holding  that  the  remedy  to  enforce  taxes  and  assessments  were  cumulative  and 
not  exclusive;  McLeod  v.  Yeates,  10  N.  B.  168,  holding  that  the  remedy  not  being 
provided  by  the  same  section  creating  the  liability,  it  was  merely  cumulative: 
West  v.  School  Dist.  No.  5,  22  N.  B.  56,  holding  that  where  the  obligation  exists 
at  common  law,  the  statute  gives  an  additional  remedy;  it  is  merely  cumulative; 
Van  Egtnond  v.  Seaforth,  6  Ont.  Rep.  599,  holding  that  where  the  remedy  was  pro- 
vided, but  the  act  was  one  which  could  not  legally  be  done,  the  party  is  not  re- 
stricted to  the  remedy;  Cook  v.  Tate,  26  Ont.  Rep.  403,  holding  that  where  the 
case  does  not  fall  within  the  statute  fixing  the  obligation,  the  party  is  not  limited 
by  it;  Barned's  Bkg.  Co.  v.  Reynolds,  36  U.  C.  Q.  B.  256,  holding  that  if  the 
remedy  is  cumulative  or  is  not  co-extensive  with  the  right  or  duty,  the  party 
is  not  restricted  to  the  statutory  remedy;  Douglas  v.  Fox,  31  U.  C.  C.  P.  140, 
holding  that  where  the  remedy  provided  by  statute  was  not  a  perfect  remedy,  the 
person  suing  is  not  limited  to  the  penalty  fixed  by  statute 
—  Where  the  remedy  is  cumulative. 

Cited  in  Beck  Mfg.  Co.  v.  Ontario  Lumber  Co.  12  Ont.  L.  Rep.  163,  holding  that 
where  the  remedy  provided  is  merely  cumulative  and  not  exclusive,  the  party 
is  not  limited  to  it. 

1  E.  R,  C.  686,  LLOYD  v.  HARPER,  L.  R.  10  Ch.  Div.  290,  43  1..  T.  N.  S.  481,  29 

Week.   Rep.   452,   50   L.   J.   Ch.   N.  S.   140. 
Action  on  contract  made  for  benefit  or  third  party. 

Cited  in  Bell  v.  Newton,  183  Mass.  481,  67  N.  E.  599,  holding 'that  where  the 
title  to  the  husband's  land  was  in  the  wife  when  he  made  a  contract  with  the 
city,  that  she  could  maintain  an  action  in  her  own  name  for  his  benefit  for  a 
breach  of  the  covenants  of  the  contract;  Re  Flav.ell,  L.  R.  25  Ch.  Div.  89,  53  L.  J. 
Ch.  N.  S.  185,  49  L.  T.  N.  S.  690,  32  Week.  Rep.  102,  on  the  right  to  enforce  con- 
tract for  the  benefit  of  third   parties. 

Cited  in  note  in  1  E.  R.  C.  704,  on  right  of  action  arising  out  of  contract  with 
a    third    person. 

Cited  in  2  Beach  Contr.  2184,  on  nonliability  under  sealed  contract  not  made 
for  benefit  of  one  who  was  not  a  party,  hut  who  acquires  interest  from  party 
thereto. 

Distinguished  in  New  England  Dredging  Co.  v.  Rockport  Granite  Co.  149  Mass. 
381,  21  N.  E.  947,  holding  that  contracts  under  seal,  between  two  for  the  doing  of 
certain  work  by  the  one  to  be  paid  for  by  the  other,  is  not  enforceable  after  the 


1  E.  R.  C.  686]        NOTES  ON  ENGLISH  RULING  CASES.  118 

work  has  been  done  as  against  others  not  parties  to  the  instrument,  either  by 
ratification   or   as  partners. 

—  Contract  by  one  in  trust  to  plaintiff. 

Cited  in  Virginia  v.  West  Virginia,  220  U.  S.  1,  55  L.  ed.  353,  31  Sup.  Ct.  Rep. 
330,  to  the  point  that  in  private  litigation  trustee  may  recover  to  extent  of 
interest  of  his  cestui  que  trust;  Walsh  v.  Packard,  165  Mass.  189,  40  L.R.A. 
321,  52  Am.  St.  Rep.  508,  42  N.  E.  577,  holding  that  a  trustee  may  recover 
damages  to  the  extent  of  the  cestui  que  trust's  interest;  Boyden  v.  Hill,  19S 
Mass.  477,  85  N.  E.  413,  holding  that  where  a  party  becomes  a  trustee  for  a 
party  by  acting  for  the  latter  in  making  a  contract,  afterward  accepted  by 
the  latter,  he  may  sue  in  his  own  name  on  the  contract. 
Action  by  third  party  on  agreement  made  for  his  benefit. 

Cited  in  Farr  v.  Rouillard,  172  Mass.  303,  52  N.  E.  443,  holding  that  a  statu- 
tory bond  given  by  a  constable  could  be  sued  on  by  any  person  who  under  the 
statute  was  entitled  to;  Shackamaxon  Bank  v.  Yard,  143  Pa.  129,  24  Am.  St. 
Rep.  521,  22  Atl.  908,  on  right  of  one  who  employs  agent  on  faith  of  under- 
taking of  third  person  to  enforce  undertaking  even  though  surety  dies;  Hen- 
derson v.  Killey,  14  Ont.  Rep.  137,  on  the  right  of  a  third  party  to  maintain 
action  on  agreement  made  for  his  benefit;  Dawson  v.  Dawson,  23  Ont.  L.  Rep.  1, 
holding  that  covenant  of  grantee  of  land  to  pay  certain  annuity  to  third  person 
is  enforceable  by  beneficiary. 
Revocation  of  a  continuing'  guarantee. 

Cited  in  Snow  v.  Horgari.  18  R.  I.  289,  27  Atl.  338,  holding  that  a  con- 
tinuing  guaranty   was    not    revocable. 

Cited  in  Stearns  Suretyship  95,  on  revocation  of  guaranty. 

—  By  death  of  the  guarantor. 

Cited  in  McClaskey  v.  Barr,  79  Fed.  408;  Fewlass  v.  Keeshan,  32  C.  C. 
A.  8,  60  U.  S.  App.  133,  88  Fed.  573,— holding  that  a  surety's  liability  on  a 
cost  bond  is  not  released  by  his  death;  Drummond  v.  Crane,  159  Mass.  577,  23 
L.R.A.  707,  38  Am.  St.  Rep.  460,  35  N.  E.  90;  Kernochan  v.  Murray,  111  N.  Y. 
306,  2  L.R.A.  183,  7  Am.  St.  Rep.  744,  18  N.  E.  868;  Holthausen'v.  Kells,  18 
App.  Div.  80,  45  N.  Y.  Supp.  471, — holding  that  where  the  consideration  for  a 
guaranty  is  given  once  for  all,  it  is  a  continuing  one  and  is  not  revoked  by  the 
death  of  the  guarantor;  National  Eagle  Bank  v.  Hunt,  16  R.  I.  148,  13  Atl.  115, 
holding  that  a  continuing  guaranty  can  not  be  revoked  either  by  revocation 
or  death  of  the  guarantor;  Chisholm  v.  Chisholm,  2  D.  L.  R.  57,  holding  that 
contract  by  testator  to  pay  specified  sum  per  annum,  so  long  as  he  was  able  to 
do  so,  is  not  terminated  by  death  of  testator,  but  continues  against  executions: 
Exchange  Bank  v.  Springer,  13  Ont.  App.  Rep.  390,  holding  that  notice  of  the 
death  of  a  surety  to  the  bank,  did  not  relieve  his  estate  from  liability  as  such 
surety  for  the  cashier;  Re  Crace  [1902]  1  Ch.  733,  2  B.  R.  C.  929,  holding  that 
where  bond  is  given  by  surety  for  integrity  of  person,  in  consideration  of  that  per- 
son being  appointed  to  office  by  obligee  of  bond,  liability  of  surety  will  not,  unless 
expressly  stipulated  in  bond,  be  determined  by  his  death. 

Cited  in  notes  in  23  L.R.A.  709;  2  Brit.  Rul.  Cas.  937:  21  Eng.  Rul.  Cas. 
671, — on  death  as  revocation  of  contract  of  suretyship  or  guaranty. 

Cited  in  1  Brandt  Suretyship  3d  ed.  311.  on  effect  of  death  of  guarantor  to  re- 
voke guaranty;  Stearns  Suretyship,  184,  on  revocation  of  suretyship  by  death  of 
promisor. 

Distinguished  in  Hyland  v.  Habich.  150  Mass.  112,  6  L.R.A.  3S3,  15  Am.  St. 
Rep.   174.   22   N.   E.    765,   holding   that  a   guaranty   of   the   payment   of  goods   to 


119  NOTES  ON  ENGLISH  RULING  CASES.        [1  E.  R.  C.  609 

be  sold  in  the  future,  secured  by  a  mortgage  of  land  is  revoked  by  tbe  death  of 
the  guarantor;  Starrs  v.  Cosgrave  Brewing  &  Malting  Co.  iJ2  Can.  S.  C.  571 
(reversing  11  Ont.  App.  Rep.  156),  holding  that  the  death  of  the  party  to  whom 
the  guarantee  was  made,  he  being  a  member  of  a  partnership,  dissolved  the  part- 
nership, and  put  an  end  to  the  guarantee. 
Withdrawal  of  offer. 

Cited  in  Benjamin  Sales,  5th  ed.  70,  as  to  when  offer  can  be  withdrawn. 

1   E.   R.   C.   699,   RE   EMPRESS   ENGINEERING   CO.   L.   R.    16   Ch.    Div.   125, 

43  L.  T.  N.   S.   742,  29   Week.   Rep.   342. 
Contracts  for  the  benefit  of  third  parties. 

Cited  in  Coffin  v.  Adams,  131  Mass.  133,  on  the  right  of  a  mortgagee  to  sue  the 
grantee  of  the  mortgagor,  who  has  promised  to  assume  the  mortgage;  Gillies  v. 
Commercial  Bank,  10  Manitoba,  L.  Rep.  460,  holding  that  where  property  is  trans- 
ferred and  agreed  to  be  transferred  by  Avay  of  mortgage,  and  moneys  are  to  be 
received  by  the  mortgagee  out  of  which  covenanted  payments  are  to  be  made, 
a  trust  may  be  imposed  upon  such  money  and  property;  Edmison  v.  Couch, 
26  Ont.  App.  Rep.  537,  holding  that  where  a  land  owner  gave  deed  to  certain  par- 
ties, making  the  land  subject  to  his  life  estate,  and  upon  good  consideration, 
and  later  gave  another  deed  to  other  parties,  of  the  same  land,  the  first  was  en- 
forceable by  the  grantees;  Clarke  v.  Birley,  L.  R.  41  Ch.  Div.  422,  58  L.  J. 
Ch.  N.  S.  616,  60  L.  T.  N.  S.  948,  37  Week.  Rep.  746,  holding  that  a  guarantee 
given  in  consideration  of  a  bank  continuing  to  extend  credit  to  a  third  party  is 
not  a  binding  contract  with  the  third  party,  he  not  having  signed   it. 

Cited  in  1  Elliott  Railr.  2d  ed.  513,  on  power  of  railroad  company  to  ratify 
unauthorized   act    outside   of    corporate    pftwers ;    Hollingsworth    Contr.    293,    on 
impossibility    of    acquiring    rights    under    contract    to    which    one    was    not    a 
party. 
—  By  the  promoter  of  a  company  soon  to  be  formed. 

Cited  in  Tuttle  v.  Tuttle,  101  Me.  287,  64  Atl.  496,  8  Ann.  Cas.  260,  holding 
that  a  contract  made  on  behalf  of  a  corporation  to  be  formed  does  not  bind 
the  latter  unless  it  is  adopted  or  ratified  by  the  latter;  Dunsmuir  v.  Colonist 
Printing  &  Pub.  Co.  9  B.  C.  275,  on  the  right  of  a  party  to  enforce  an  agree- 
ment made  prior  to  the  organization  of  a  company,  in  its  behalf;  Abbott  v. 
Hapgood,  150  Mass.  24S,  5  L.R.A.  586,  15  Am.  St.  Rep.  193,  22  N.  E.  907;  Brad- 
ford v.  Metcalf,  185  Mass.  205,  70  N.  E.  40;  Cass  v.  McCutcheon,  15  Manitoba 
L.  Rep.  669, — holding  that  a  contract  made  by  an  agent  or  promoter  on  be- 
half of  a  company  to  be  formed  can  not  be  adopted  or  ratified  so  as  to  be- 
come binding  on  it  when  organized;  Re  Hess  Mfg.  Co.  21  Ont.  App.  Rep.  66, 
holding  that  a  corporation  could  become  liable  on  contracts  made  in  its  behalf 
either  by  express  statement  in  its  charter  or  by  contract  after  its  formation; 
Halifax  Street  Carette  Co.  v.  McManus,  27  N.  S.  173,  holding  that  offer  <>f 
subscriber  to  stock  of  proposed  corporation  made  before  incorporation  to  pay 
certain  sum  to  be  relieved  from  obligation,  cannot  be  taken  advantage  of  after 
incorporation. 

Cited  in  note  in  26  L.R.A.  548,  on  liability  of  corporations  on  contracts  of  pro- 
moters. 

Cited  in  1  Elliott  Railr.  2d  ed.  28,  as  to  when  contracts  of  promoters  are  binding 
on  corporation;  Hollingsworth  Contr.  72,  on  inability  of  corporation  to  ratify 
contract  entered  into  before  its  incorporation;  2  Page  Contr.  1573,  on  effect  of  ac- 


1  B.  R.  C.  699]        NOTES  ON  ENGLISH  RULING  CASES.  120 

ceptance  by  a  corporation  of  contract  by  promoter;  Tiffany  Ag.  56,  on  ratification 
by  corporation  of  contracts  of  promoters. 

Distinguished  in  Howard  v.  Patent  Ivory  Mfg.  Co.  L.  R.  33  Ch.  Div.  156, 
57  L.  J.  Ch.  N.  S.  878,  58  L.  T.  N.  S.  395,  36  Week.  Rep.  801,  holding  that 
where  the  adoption  of  the  contract  made  on  behalf  of  an  unformed  corporation 
by  its  promoter,  amounted  to  the  making  of  a  new  contract  the  corporation 
would  be  bound  by  it;  MoArthur  v.  Times  Printing  Co.  48  Minn.  319,  31  Am. 
St.  Rep.  653,  51  N.  W.  216,  holding  that  a  corporation  may  adopt  as  its  own  a 
contract  made  in  its  behalf  before  its  organization  by  a  promoter,  but  the  adop- 
tion must  amount  to  the  making  of  a  new  contract;  McCausland  v.  Hill,  23  Ont. 
App.  Rep.  738,  holding  -that  an  agreement  made  by  dealers  not  to  compete  with 
a  company  which  they  were  forming  could  be  enforced  by  other  parties  who 
were  shareholders  in  the  company. 

—  Actions  to  enforce. 

Cited  in  Clark  v.  Kendall,  4  B.  C.  503,  holding  that  where  a  party  was  substi- 
tuted in  a  contract  and  by  the  terms  of  the  substitution  agreement,  the  former 
party  to  it  was  to  be  paid  certain  proportion  of  consideration  of  the  contract  by 
the  other  party  to  it,  the  former  could  enforce  it;  Re  Flavell,  L.  R.  25  Ch.  Div.  89, 
53  L.  J.  Ch.  N.  S.  185,  49  L.  T.  N.  S.  690,  32  Week.  Rep.  102,  on  the  right  to 
enforce  contract  for  the  benefit  of  third  parties. 

Distinguished  in  Re  Shediac  Boot  &  Shoe  Co.  37  N.  B.  98,  holding  that  where 
the  proceeds  of  a  fire  insurance  policy  was  made  payable  to  a  bank  to  the  ex- 
tent of  its  mortgage  interest,  it  was  entitled  to  be  paid  out  of  the  assets  of  the 
company,  this  amount  where  the  business  of  the  company  was  being  wound  up. 

—  Parties  to  action  on  contract. 

Cited  in  Keller  v.  Ashford,  133  U.  S.  610,  33  L.  ed.  667,  10  Sup.  Ct.  Rep.  494, 
holding  that  where  the  grantee  of  real  estate  assumes  the  payment  of  a 
mortgage  on  it,  the  mortgagee  cannot  enforce  the  agreement,  in  the  absence  of 
other  conditions;  Morrill  v.  Lane,  136  Mass.  93,  holding  that  where  one  party 
assigned  goods  to  another,  and  the  latter  agrees  to  pay  the  amount  owed  by  the 
former  to  his  employees  for  labor  on  the  goods,  the  employees  cannot  maintain 
an  action  on  the  promise;  National  Bank  v.  Texas  Invest.  Co.  74  Tex.  421,  12 
S.  W.  101,  holding  that  where  a  corporation  promises  for  a  valuable  considera- 
tion to  pay  the  debt  of  another,  the  party  owning  the  claim  may  sue  directly  on 
the  promise;  Osborne  v.  Henderson,  Cameron  (Can.)  323  (reversing  17  Ont.  App. 
Rep.  459,  which  affirmed  14  Ont.  Rep.  137),  holding  that  where  a  pai'tnership 
was  dissolved  and  one  partner  continued  the  business,  and  afterward  formed 
another  partnership  transferring  to  it  all  his  property,  subject  to  his  debts, 
the  second  member  of  the  old  firm  could  not  enforce  the  last  agreement  as  to  his 
debts;  Henderson  v.  Killey,  17  Ont.  App.  Rep.  456  (affirming  14  Ont.  Rep. 
137),  holding  that  where  two  partners  dissolved  partnership,  and  one  gave  the 
other  certain  notes  to  pay  for  his  share  and  afterward  formed  another  part- 
nership transferring  all  his  property  to  it  subject  to  his  liabilities  the  holder 
of  the  note  could  enforce  the  latter  agreement;  Henderson  v.  Killey,  14  Ont. 
Rep.  137,  holding  that  where  one  member  of  a  partnership  transferred  to  it  all 
of  his  property  subject  to  his  liabilities,  a  person  holding  a  note  against  him 
could  enforce  the  agreement;  Centre  Star  Min.  Co.  v.  Rossland-Kootenay  Min. 
Co.  11  B.  C.  231,  holding  that  a  successor  of  an  old  company  whose  debts  and 
liabilities  it  agrees  to  pay  is  not  liable  for  a  tort  of  the  old  company  to  a 
stranger  to  the  contract;  Real  Estate  Loan  Co.  v.  Molesworth,  3  Manitoba  L. 
Rep.  116,  holding  that  a  surety  for  the  payment  of  a  mortgage  cannot  be  made 


121  NOTES  ON  ENGLISH  RULING  CASES.        LI  E.  R.  C.  707 

a  party  to  a  foreclosure  bill;  Andrews  v.  Moodie,  17  Manitoba  Law  Rep.  1, 
holding  that  where  the  wife  sued  for  alimony  but  they  met  in  this  plaintiff's 
office  and  agreed  to  become  reconciled,  and  he  promised  to  pay  her  attorney's 
fees,  the  plaintiffs,  her  attorneys,  could  not  recover  on  that  promise;  Robert- 
son v.  Lonsdale,  21  Ont.  Rep.  GOO,  holding  that  on  an  agreement  between  two  par- 
ties whereby  one  of  them  was  to  pay  a  certain  sum  to  a  third  party,  no  action 
could  be  maintained  by  such  third  party;  Faulkner  v.  Faulkner,  23  Ont.  Rep. 
252,  holding  that  where  the  mother  deeded  to  her  daughters  her  land  and  took 
back  a  mortgage  and  a  covenant  by  them  that  they  would  educate  their  younger 
brother,  he  could  not  maintain  an  action  on  the  covenant;  Mitchell  v.  Lon- 
don Assur.  Co.  15  Ont.  App.  Rep.  262,  holding  that  where  a  tug  was  insured  and 
the  amount  was  made  payable  to  the  extent  of  his  interest,  and  he  renewed 
the  policy,  the  mortgagor  could  sue  on  it  for  the  amount  of  loss;  Agricultural 
Sav.  &  L.  Co.  v.  Liverpool  &  L.  &  G.  Ins.  Co.  3  Ont.  L.  Rep.  127,  holding  that 
mortgagees  to  whom  by  an  insurance  policy,  loss  is  made  payable  to  the 
amount  of  their  interest,  may  maintain  an  action  upon  the  policy  in  their 
own  name  but  if  there  is  no  subrogation  clause  relative  to  the  mortgage  they  are 
subject  to  the  same  defenses  as  the  insured;  Gandy  v.  Gandy,  L.  R.  30  Ch.  Div. 
57,  3  Eng.  Rul.  Cas.  315,  54  L.  J.  Ch.  N.  S.  1154,  53  L.  T.  N.  S.  306,  33  Week. 
Rep.  803,  holding  that  to  entitle  a  person  to  sue  on  a  contract  made  for  his 
benefit  by  others  than  himself,  he  must  possess  a  beneficial  right  which  places 
him  in   the  position   of   cestui  que  trust  under  the  contract. 

Oited  in  note  in  25  L.R.A.  27!',  on  right  of  third  party  to  sue  upon  contract 
made  for  his  benefit. 

1   E.  R.  C.  707,  LUMLEY  v.  GV1~E,  2  El.  &  Bl.  216,  17  Jur.  327,  1   Week.  Rep. 

432,  22  L.  J.  Q.  B.  N.  S.  463. 
Damages  for  maliciously  procuring  a  breach  of  a  contract. 

Cited  in  Angle  v.  Chicago,  St.  P.  M.  &  O.  R.  Co.  151  U.  S.  1,  38  L.  ed.  55, 
14  Sup.  Ct.  Rep.  240,  holding  that  an  action  lies  against  one  who  maliciously  in- 
terferes with,  and  induces  one  of  the  parties  to  break,  that  contract;  Heath 
v.  American  Book  Co.  97  Fed.  533,  holding  that  where  the  plaintiff  had  a  eon- 
tract  with  the  state  to  furnish  school  books  for  ten  years,  an  action  would  be 
against  a  person  who  induces  the  school  boards  to  buy  books  elsewhere;  Ma- 
honey  v.  Roberts,  86  Ark.  130,  110  S.  W.  225,  holding  that  persons  who  aid  an- 
other to  violate  a  contract  with  a  stranger,  whether  for  the  purpose  of  injuring 
him  or  benefiting  themselves  are  liable  for  damages  therefor;  Doremus  v. 
Hennessy,  176  111.  608,  43  L.R.A.  797,  6S  Am.  St.  Rep.  203,  52  N.  E.  924  (af- 
firming 62  111.  App.  391),  holding  that  where  the  plaintiff  operated  a  laundry 
and  had  contracts  with  persons  to  do  the  work  for  her,  and  the  defendants  ma- 
liciously induced  them  to  break  these  contracts,  the  latter  were  liable;  Schon- 
wald  v.  Ragains,  32  Okla.  223,  39  L.R.A.  (N.S.)  854,  122  Pac.  203,  holding  that  it 
is  actionable  tort  for  one  to  maliciously  interfere  with  contract  between  two 
parties  and  induce  one  of  thorn  to  break  contract  to  other's  damage;  Wells  & 
R.  Co.  v.  Abraham,  146  Fed.  190;  Bobbs-Merrill  Co.  v.  Straus,  15  L.R.A. 
(N.S.)  766,  77  C.  C.  A.  607,  147  Fed.  15;  Seelig  v.  Dumas,  48  La.  Ann.  1494,  21 
So.  91;  Ensor  v.  Bolgiano,  67  Md.  190,  9  Atl.  529  (dissenting  opinion);  Van 
Horn  v.  Van  Horn,  52  N.  J.  L.  2S4,  10  L.R.A.  184,  20  Atl.  485,— on  the  liabil- 
ity for  maliciously  procuring  a  breach  of  a  contract;  Van  Horn  v.  Van  Horn, 
56  N.  J.  L.  318,  28  Atl.  669,  holding  that  where  a  party  was  induced  to 
refuse  to   complete  his   contract   for   delivery   of   goods,   by   false    and    malicious 


1  E.  R.  C.  707]        NOTES  ON  ENGLISH  RULING  CASES.  122 

statements  as  to  the  credit  of  the  other  contracting  party,  a  cause  of  action 
arises  in  favor  of  the  latter;  Toledo,  A.  A.  &  N.  M.  R.  Co.  v.  Pennsylvania  R. 
Co.  19  L.R.A.  387,  5  Inters.  Com.  Rep.  522,  54  Fed.  730;  Swain  v.  Schieffelin, 
134  N.  Y.  471,  18  L.R.A.  3S5,  31  N.  E.  1025,— on  acts  inducing  a  third  party 
to  break  his  contract;  People  ex  rel.  Burnham  v.  Flynn,  49  Misc.  328,  99  N. 
Y.  Supp.  198,  holding  that  an  agreement  to  ignore  a  contract  and  occasion  a 
breach  thereof  constitutes  an  actionable  wrong;  Edison  General  Electric  Co.  v. 
Vancouver  &  N.  W.  Tramway  Co.  4  B.  C.  4G0,  on  the  right  of  action  against  one 
persuading  another  to  break  his  agreement  with  a  third;  Derry  v.  Derry,  19 
N.  B.  621,  holding  that  an  action  would  lie  for  maliciously  and  fraudulently 
inducing  a  person  to  whom  a  deed  had  been  delivered  as  an  escrow,  to  prove 
and  record  it  contrary  to  his  instructions;  Quick  v.  Church,  23  Ont.  Rep.  262, 
holding  that  an  action  will  lie  for  the  alienation  of  the  husband's  affections ; 
Nolin  v.  Pearson,  191  Mass.  283,  4  L.R.A.(N.S.)  643,  114  Am.  St.  Rep.  605, 
77  N.  E.  890,  6  Ann.  Cas.  658,  holding  same  and  for  the  loss  of  his  society  and 
aid;  Ashford  v.  Choate,  20  U.  C.  C.  P.  471,  holding  that  for  maliciously  slander- 
ing title  whereby  a  contract  for  the  sale  of  the  land  was  prevented  from  be- 
ing completed  there  could  be  a  recovery;  Glamorgan  Coal  Co.  v.  South  Wales 
Miners'  Federation  [1903]  1  K.  B.  118,  reversed  in  [1903]  2  K.  B.  545;  72 
L.  J.  K.  B.  N.  S.  893,  SO  L.  T.  N.  S.  393;  19  Times  L.  R.  708,  52  Week.  Rep. 
165,  which  was  affirmed  [1905]  A.  C.  239,  1  B.  R.  C.  1,  74  L.  J.  K.  B.  N.  S.  525, 
53  Week.  Rep.  593,  92  L.  T.  N.  S.  710;  21  Times  L.  R.  441,  holding  that  procur- 
ing a  breach  of  contract  is  an  actionable  wrong  unless  there  be  justification 
therefor. 

Cited  in  notes  in  21  L.R.A.  233,  238,  on  liability  for  inducing  breach  of  con- 
tract; 1  Eng.  Rul.  Cas.  727,  728,  on  right  of  action  against  one  intentionally 
inducing   another   person    to   break   his    contract. 

Cited  in  Hollingsworth  Contr.  289,  on  incurring  liability  from  contract  to  which 
one  was  not  a  party,  by  inducing  party  to  break  it;  3  Page  Contr.  2050,  2051,  on, 
liability   for   interference   by   individual   with   existing  contract. 

Distinguished  in  Guethler  v.  Altman,  26  Ind.  App.  587,  84  Am.  St.  Rep.  313, 
60  N.  E.  355,  holding  that  a  school  teacher  who  advised  her  pupils  not  to  trade 
at  a  certain  store  was  not  liable  therefor  to  the  owner  of  the  store;  Heywood 
v.  Tillson,  75  Me.  225,  46  Am.  Rep.  373,  holding  that  it  did  not  give  rise  to  a 
cause  of  action  for  a  person  to  refuse  to  retain  in  his  service  any  person  who 
rented  certain  premises,  though  done  maliciously;  Dudley  v.  Briggs,  141  Mass. 
582,  55  Am.  Rep.  494,  6  N.  E.  717,  holding  that  for  preventing  the  plaintiff 
from  obtaining  a  contract  for  printing  certain  books,  no  action  would  lie  as 
no  contract  existed  to  be  broken;  Macauley  Bros.  v.  Tierney,  19  R.  I.  255,  37 
L.R.A.  455,  61  Am.  St.  Rep.  770,  33  Atl.  1,  holding  that  where  wholesale  dealers 
refused  to  sell  to  certain  persons  because  of  notices  from  a  labor  union,  no 
action  will  lie  against  the  latter  in  favor  of  the  former;  Gibbons  v.  Metcalfe, 
15  Manitoba  L.  Rep.  560,  holding  that  a  combination  in  restraint  of  trade,  not 
maliciously  entered  into,  and  simply  to  promote  their  own  business,  not  for 
an  illegal  purpose  does  not  give  a  right  of  action  to  a  person  affected  by  the 
same  through  injury  to  his  business;  Duffies  v.  Duffies,  76  Wis.  374,  8  L.R.A. 
420,  20  Am.  St.  Rep.  79,  45  N.  W.  522,  holding  that  no  action  will  lie  in  favor 
of  the  wife  against  one  enticing  away  her  husband,  for  the  loss  of  his  society 
and  support;  Lawson  v.  Halifax,  12  N.  S.  168,  holding  that  where  the  plaintiff 
owned  a  dance  hall,  which  he  let  for  hire,  no  action  would  lie  for  acts  of  the 
defendants  in  inducing  persons  not  to  hire  the  same,  as  there  were  no  contrac- 


123  NOTES  ON    ENGLISH  RULING  CASES.        |1   E.   R.  C.  707 

tual  rights;  Irvine  v.  Canadian  Banlc,  23  U.  C.  C.  P.  500,  holding  that  for  wrong- 
fully protesting  for  nonacceptance  a  draft,  after  acceptance  by  the  drawee, 
there  being  no  contract  rights  between  the  parties,  there  could  be  no  recovery, 
without  malice  being  shown;  Davis  v.  Barnett,  2(i  U.  C.  Q.  B.  109,  holding  thai 
where  the  defendant  and  plaintiff  both  furnished  special  dresses  to  those  wishing 
to  pass  under  Niagara  Falls,  and. the  defendant  through  wrongful  representa- 
tions induced  persons  not  to  go  to  the  plaintiff,  the  latter  could  not  recover; 
Cattle  v.  Stockton  Waterworks  Co.  L.  R.  10  Q.  B.  453,  44  L.  J.  Q.  B.  N.  S. 
130,  33  L.  T.  N.  S.  475,  holding  that  where  a  leak  in  the  defendant's  mains  caused 
the  plaintiff  who  had  engaged  to  build  a  tunnel  to  quit  his  contract  no  action 
would  lie  against  the  defendants,  though  resulting  in  pecuniary  loss  to  him ; 
Mogul  S.  S.  Co.  v.  McGregor,  L.  R.  21  Q.  B.  Div.  544,  L.  R.  23  Q.  B.  Div.  598; 
58  L.  J.  Q.  B.  N.  S.  465,  61  L.  T.  N.  S.  820,  holding  that  a- combination  to  oh- 
tain  trade  was  not  in  itself  illegal  where  no  illegal  methods  were  resorted  to,  to 
obtain  a  monopoly. 
—  Contracts  for  personal  services. 

Cited  in  Brown  v.  Pillow,  98  C.  C.  A.  579,  174  Fed.  967,  holding  that  one  who 
under  claim  of  ownership  took  possession  of  dredge  being  operated  by  libellant, 
cannot  be  held  liable  in  damages  on  ground  that  by  reason  of  such  action  libel  - 
lant's  employees  left  his  service  in  violation  of  their  contracts,  when  he  at 
once  retook  possession  of  dredge;  McGovern  v.  Fitzpatrick,  14S  App.  Div.  34, 
131  N.  Y.  Supp.  1048,  holding  that  for  third  party  to  be  held  liable  for  inducing 
breach  of  contract  for  services  it  must  appear  that  he  has  been  guilty  of  some 
wrongdoing  amounting  to  tort;  Haskins  v.  Royster,  70  N.  C.  601,  16  Am.  Rep. 
780,  holding  that  any  person  who,  without  lawful  justification,  induces  for  con- 
sideration, one  who  has  contracted  to  render  personal  service,  to  quit  such  serv- 
ice is  liable  in  damages  to  injured  party;  Jones  v.  Leslie,  61  Wash.  107,  48  L.R.A. 
(N.S.)  893,  112  Pac.  81,  Ann.  Cas.  1912B,  1158,  holding  that  damages  are  re- 
coverable by  servant,  where  on  giving  notice  to  employer  that  he  was  about  to 
take  another  job,  employer  notified  prospective  employer  that  if  he  did  hire 
plaintiff  defendant  would  discontinue  business  with  him;  Pegram  v.  Stortz, 
31  W.  Va.  220,  6  S.  E.  485,  to  the  point  that  at  common  law,  action  on  case 
could  be  maintained  by  master  for  forcibly  carrying  off  or  enticing  away  serv- 
ant; Beekman  v.  Marsters,  195  Mass.  205,  11  L.R.A.(N.S.)  201,  122  Am.  St. 
Rep.  232,  80  N.  E.  817,  11  Ann.  Cas.  332,  holding  that  there  is  no  distinc- 
tion between  a  contract  for  hire  and  any  other  contract;  Lucke  v.  Clothing 
Cutters'  &  T.  Assembly,  77  Md.  396,  19  L.R.A.  408,  39  Am.  St.  Rep.  421,  26 
Atl.  505,  holding  that  an  action  would  lie  in  favor  of  a  servant  whose  discharge 
had  been  procured  by  a  labor  union  because  he  was  not  a  union  man,  and  for 
no  other  reason;  Old  Dominion  S.  S.  Co.  v.  McKenna,  30  Fed.  48,  18  Abb.  N.  C. 
262;  Employing  Printers'  Club  v.  Doctor  Blosser  Co.  122  Ga.  509,  69  L.R.A. 
90,  106  Am.  St.  Rep.  137,  50  S.  E.  353,  2  Ann.  Cas.  694;  Walker  v.  Cronin, 
107  Mass.  555, — holding  that  an  action  in  tort  will  lie  for  wilfully  inducing 
servants  to  quit  their  employ  and  was  thereby  compelled  to  pay  higher  prices 
to  new  ones;  Perkins  v.  Pendleton,  90  Me.  166,  60  Am.  St.  Rep.  252,  38  Atl.  96; 
Moran  v.  Dunphy,  177  Mass.  4S5,  52  L.R.A.  115,  83  Am.  St.  Rep.  2S9,  59  N.  E. 
125, — holding  that  to  maliciously  induce  an  employer  to  discharge  an  employee 
is  an  actionable  tort;  Lally  v.  Cantwell,  30  Mo.  App.  524,  holding  that  a  dec- 
laration which  states  that  the  defendant  maliciously  uttered  false  statements 
concerning  him  whereby  he  was  discharged  from  his  master's  employment, 
states  a  good  cause  of  action;    Cuff  v.   Newark   &   N.   Y.   R.  Co.  .35  X.  J.   L.    17, 


1  E.  R.  C.  707]        NOTES  ON  ENGLISH  RULING  CASES.  124 

10  Am.  Rep.  205,  on  the  liability  for  procuring  the  discharge  of  a  servant; 
Brennan  v.  United  Hatters,  N.  A.  Local  No.  17,  73  N.  J.  L.  729,  9  L.R.A.(N.S.) 
254,  118  Am.  St.  Rep.  727,  65  Atl.  165,  9  Ann.  Cas.  698,  holding  that  whoever 
intentionally  and  without  legal  excuse  induces  a  master  to  discharge  his  servant 
to  the  damage  of  the  latter,  is  liable  in  damages  to  him;  Chain  Belt  Co.  v.  Von 
Spreckelsen,  117  Wis.  106,  94  N.  W.  78,  on  the  right  to  damages  where  one 
procures  maliciously  a  breach  of  contract  for  exclusive  personal  services; 
Beardsley  v.  Copeland,  8  N.  B.  458,  to  the  point  that  action  will  lie  against 
third  person  for  inducing  party  to  break  contract  for  exclusive  personal  service; 
De  Francesco  v.  Barnum,  63  L.  T.  N.  S.  514;  American  Asso.  Base  Ball 
Club  v.  Pickett,  20  Phila.  298,  47  Phila.  Leg.  Int.  212,  8  Pa.  Co.  Ct.  232  — 
holding  that  one  who  knowingly  takes  and  keeps  one  who  has  broken  his  con- 
tract with  another  for  his  services,  is  liable  in  damages  to  the  party  to  the 
former  contract;  Passaic  Print  Works  v.  Ely  &  W.  Dry  Goods  Co.  62  L.R.A. 
673,  44  C.  C.  A.  426,  105  Fed.  163;  Gore  v.  Condon,  87  Md.  368,  40  L.R.A. 
382,  67  Am.  St.  Rep.  352,  39  Atl.  1042;  Knickerbocker  Ice  Co.  v.  Gardiner  Dairy 
Co.  107  Md.  556,  16  L.R.A.  (N.S.)    746,  69  Atl.  405;  Temperton  v.  Russell  [1893] 

1  Q.  B.  715,  62  L.  J.  Q.  B.  N.  S.  412,  4  Reports,  376,  69  L.  T.  N.  S.  78,  41 
Week.  Rep.  565,  57  J.  P.  676;  Raymond  v.  Yarrington,  96  Tex.  443,  62  L.R.A. 
962,  97  Am.  St.  Rep.  914,  73  S.  W.  800, — holding  that  one  who  knowingly  in- 
duces another  to  break  his  contract  with  a  third  person,  is  liable  to  him  for 
the  damages  caused,  whether  the  contract  is  for  services  or  otherwise;  Brauch 
v.  Roth,  10  Ont.  L.  Rep.  284,  4  Ann.  Cas.  1024,  holding  that  it  is  an  actionable 
wrong  to  persuade  a  servant  to  break  his  contract  with  his  master,  even  though 
it  is  not  done  wilfully  and  in  bad  faith;  Hewitt  v.  Ontario  Copper  Lightning 
Rod  Co.  44  U.  C.  Q.  B.  287,  holding  that  plaintiff  could  recover  where  the  de- 
fendants had  enticed  certain  of  the  former's  servants  to  desert  his  service;  Gas 
Power  Age  v.  Central  Garage  Co.  21  Manitoba  L.  Rep.  496,  to  the  point  that  ac- 
tion may  be  maintained  against  person  who  induces  another  under  personal  con- 
tract, to  break  his  contract;  Lyons  v.  Wilkins  [1899]  1  Ch.  255,  68  L.  J.  Ch. 
N.  S.  146,  63  J.  P.  339,  47  Week.  Rep.  291,  79  L.  T.  N.  S.  709,  15  Times  L.  R. 
128,  on  the  liability  of  one  who  maliciously  interferes  with  the  relation  of  master 
and  servant:  Bowen  v.  Hall,  L.  R.  6  Q.  B.  Div.  333,  50  L.  J.  Q.  B.  N.  S.  305, 
44  L.  T.  X.  S.  75,  29  Week.  Rep.  307,  45  J.  P.  373,  Eng.  Rul.  Cas.  717,  holding 
that  an  action  lies  against  one  who  maliciously  induces  another  to  break  his 
contract  for  exclusive  personal  service  with  his  employer,  although  the  relation 
of   master   and   servant   does  not   strictly   exist;    Read   v.   Friendly   Soc.    [1902] 

2  K.  B.  88,  71  L.  J.  K.  B.  N.  S.  634,  50  Week.  Rep.  619,  86  L.  T.  N.  S.  593, 
18  Times  L.  R.  577  (modified  in  [1902]  2  K.  B.  732,  1  B.  R.  C.  503,  71  L.  J. 
K.  B.  N.  S.  994,  87  L.  T.  N.  S.  493,  51  Week.  Rep.  115,  19  Times  L.  R.  20,  66 
J.  P.  822),  holding  that  where  the  defendants  procured  the  plaintiff's  discharge 
from  an  apprenticeship  becauso  his  hiring  was  contrary  to  the  rules  of  their 
union,  they  were  liable  to  him  for  damages  caused  thereby. 

Cited  in  notes  in  5  L.R.A. (N.S.)  1097,  1098,  on  civil  liability  for  enticing  serv- 
ant to  quit;  17  Eng.  Rul.  Cas.  352-356,  on  liability  for  inducing  breach  of  con- 
tract  of   service. 

Cited  in  Tiffany  Ag.  329,  on  liability  of  third  person  for  causing  loss  of 
service  by   wrongful   act. 

Distinguished  in  Glencoe  Land  Ik  Gravel  Co.  v.  Hudson  Bros.  Commission  Co. 
138  Mo.  439,  36  L.R.A.  804,  60  Am.  St.  Rep.  560.  40  S.  W.  93;  Johnston  Har- 
vester  Co.  v.  Meinhardt,   60  How.   Cr.    168,   9   Abb.   X.   C.   393,—  holding  that   a 


125  NOTES  ON  ENGLISH  RULING  CASES.        |1    E.   R.  C.  707 

recovery  for  the  enticement  of  servants,  where  the  person  enticed  is  a  free 
agent  to  come  and  go  as  he  will,  is  not  allowed:  Allen  v.  Flood  [180SJ  A.  C.  1, 
67  L.  J.  Q.  B.  N.  S.  119,  77  L.  T.  N.  S.  717,  40  Week.  Rep.  258,  62  J.  P.  595,  17 
Eng.  Rul.  Cas  285  (reversing  [1895]  2  Q.  B.  21,  G4  L.  J.  Q.  B.  665,  14  Reports 
397,  43  Week.  Rep.  453,  59  J.  P.  388),  holding  that  when'  the  defendants  pro- 
cured the  plaintiffs'  discharge  by  refusing  to  continue  the  work  unless  the 
plaintiffs  were  discharged,  no  action  will  lie  against  the  defendants,  where  the 
discharge  does  not  constitute  a  breach  of  contract. 

Disapproved  in  Chambers  v.  Baldwin.  01  Ky.  121,  11  L.B.A.  545,  34  Am.  St. 
Rep.  165,  15  S.  W.  57;  Bourlier  Bros.  v.  Macauley,  01  Ky.  135.  11  L.RA.  550, 
34  Am.  St.  Rep.  171,  15  S.  W.  60, — holding  that  an  action  will  not  lie  for  ma- 
liciously procuring  another  to  break  his  contract  with  a  third,  unless  done  by 
coercion    or   deception,   and   caused   contrary    to   the   person's   will    and    purpose. 

—  Pleadings  in  action  for. 

Oited  in  May  v.  Wood,  172  Mass.  11,  51  N.  E.  191  (dissenting  opinion),  on 
the  form   of   declaration   in   such   an   action. 

—  Riglit  to  restrain  by  injunction. 

Cited  in  Tubular  Rivet  &  Stud  Co.  v.  O'Brien,  93  Fed.  200,  holding  that  one 
who  aids  another  in  violating  a  contract  will  be  enjoined ;  Dr.  Miles  Medical 
Co.  v.  Jaynes  Drug  Co.  149  Fed.  838,  on  the  right  to  restrain  the  defendants 
from  inducing  persons  to  violate  their  contract  with  the  plaintiff;  Johnston 
Harvester  Co.  v.  Meinhardt,  9  Abb.  N.  C.  393,  holding  that  remedy  against  con- 
federation of  persons  for  enticing  away  servant  is  action  for  damages  and  not 
injunction;  Fleckenstein  Bros.  Co.  v.  Fleckenstein,  66  N.  J.  Eq.  252,  57  Atl.  1025, 
holding  that  wife  of  one  who  covenanted  not  to  engage  in  business  upon  sale  of 
good  will,  may  be  enjoined  from  holding  out  as  active  agent  such  covenantor, 
where  she  has  knowledge  that  purchaser  is  thereby  being  injured;  George  Jonas 
Glass  Co.  v.  Glass  Bottle  Blowers'  Asso.  77  N.  J.  Eq.  219,  41  L.R.A.  ( X.S.)  445, 
79  Atl.  262,  sustaining  injunction  restraining  defendants  from  using  either 
coercion  or  persuasion  in  order  to  bring  about  breaches  of  contracts  of  per- 
sonal service  existing  between  complainant  and  its  employees;  Alderson  v. 
Maddison,  L.  R.  7  Q.  B.  Div.  174,  50  L.  J.  Q.  B.  N.  S.  466,  45  L.  T.  N.  S. 
334,  29  Week.  Rep.  556,  to  point  that  equity  would  restrain  violation  of  contract 
for  personal  service. 
Malice  necessary  to  constitute  the  wrongfulness  of  an  act. 

Cited  in  Tubular  Rivet  &  Stud  Co.  v.  Exeter  Boot  &  Shoe  Co.  86  C.  C.  A. 
648,  159  Fed.  824,  holding  that  plaintiff  was  entitled  to  recover  for  the  defend- 
ant having  induced  another  to  break  his  contract  with  the  plaintiff,  even  with- 
out proof  of  malice;  Motley.  G.  &  Co.  v.  Detroit  Steel  &  Spring  Co.  161  Fed.  389, 
holding  that  the  existence  of  malice  is  not  necessary  to  render  the  defendants 
liable  for  carrying  out  a  conspiracy  to  break  a  contract  made  with  one  of 
them:  Sparks  v.'  MeCreary,  156  Ala.  382,  22  L.R.A. (N.S.)  12:24.  47  So.  332, 
holding  that  wrongful  interference  with  another's  business  is  actionable  with- 
out regard  to  intent  since  intent  only  affects  question  of  damages;  Arnold  v. 
Moffitt,  30  R.  I.  310,  75  Atl.  502,  holding  that  in  action  for  injury  to  business, 
where  there  is  no  proof  of  any  illegal  act  on  part  of  defendant,  it  is  of  no  con- 
sequence that  it  might  be  made  to  appear  that  defendant  was  actuated  by 
malicious  motives;  Boyson  v.  Thorn,  98  Cal.  578,  21  L.R.A.  233,  33  Pac.  492, 
on  malice  as  making  Avrongful  an  interference  with  a  contract  between  other 
persons:  Tasker  v.  Stanley,  153  Mass.  148,  10  L.R.A.  468,  20  N.  E.  417,  holding 
that   in   order  to   held   a   party    liable   for   his   advice   to   a   married   woman   to 


1  E.  R.  C.  707]        NOTES  ON  ENGLISH  RULING  CASES.  126 

leave  her  husband,  it  must  be  shown  that  the  advice  was  not  honestly  given  and 
was  given  from  malevolent  motives;  McCann  v.  Wolff,  28  Mo.  App.  447,  holding 
that  a  petition  which  did  not  allege  that  the  person  fraudulently  or  malicious- 
ly interfered  to  procure  the  abandonment  of  a  contract  was  bad  on  demurrer; 
Anonymous,  29  U.  C.  Q.  B.  456,  on  the  inuendo  necessary  to  make  words  libel- 
lous. 

Cited  in  note  in  62  L.R.A.  679,  682,  706,  719,  on  effect  of  bad  motive  to  make 
actionable  what   would   otherwise   not   be. 

—  Necessity  of  knowledge  of  contract  broken. 

Cited    in   McGurk   v.    Cronenwett,    199    Mass.    457,    19    L.R.A. (N.S.)    561,    S5 
N.   E.  576,  holding  that  in  an  action  for  maliciously  procuring  a  breach   of  a 
contract   of   employment,   it   must   be   shown   that   the   party   procuring  it,   had 
knowledge  of  the   contract. 
Malicious  procurement  of  a  violation  of  a  right  as  an  actionable  wrong. 

Cited  in  O'Brien  v.  People,  216  111.  354,  108  Am.  St.  Rep.  219,  75  N.  E.  108, 
3  Ann.  Cas.  966,  holding  that  attempt  to  compel  employer  to  sign  agreement 
to  conduct  business  by  employing  only  members  of  labor  unions,  under  threats 
of  ordering  strike,  is  unlawful;  Doremus  v.  Hennessy,  02  111.  App.  391,  holding 
that  action  may  be  maintained  for  malicious  interference  with  business  of  an- 
other, his  occupation,  profession,  or  way  of  obtaining  livelihood;  Joyce  v.  Great 
Northern  R.  Co.  100  Minn.  225,  8  L.R.A. (N.S.)  756,  110  N.  W.  975,  holding  that 
the  malicious  prevention  of  the  employment  of  third  persons  is  an  actionable 
wrong;  Lohse  Patent  Door  Co.  v.  Fuelle,  215  Mo.  421,  22  L.R.A. (N.S.)  607,  128 
Am.  St.  Rep.  492,  114  S.  W.  997,  on  malicious  injury  to  trade  as  being  action- 
able; Southern  R.  Co.  v.  Chambers,  126  Ga.  404,  7  L.R.A.  (N.S.)  926,  55  S.  E. 
37;  Barr  v.  Essex  Trades  Council,  53  N.  J.  Eq.  101,  30  Atl.  881,— holding  that 
malicious  injury  to  the  business  of  another  gives  a  right  of  action  to  the  party 
injured;  Copeland-Ohatterson  Co.  v.  Hatton,  10  Can.  Exch.  224,  holding  that  the 
intentional  procurement  of  a  violation  of  an  individual  right,  either  contractual 
or  otherwise,  gave  rise  to  a  cause  of  action. 

Cited  in  note  in  25  E.  R.  C.  82,  on  liability  for  wilfully  and  intentionally 
harming  another  in  exercise  of  a  legal  right. 

Cited  in  1  Thompson  Neg.  527,  on  liability  of  principal  for  acts  of  agent  in 
boycotting  a  third   person. 

Distinguished  in  Gray  v.  Ottolengui,  12  Rich.  L.  101,  holding  that  where  an  ac- 
tion is  brought  to  recover  damages  from  a  breach  of  contract,  some  privity 
must  be  shown  between  plaintiff  and   defendant. 

—  Conspiracy. 

Cited  in  Continental  Ins.  Co.  v.  Fire  Underwriters,  67  Fed.  310;  State  ex  inf. 
Hadley  v.  Standard  Oil  Co.  218  Mo.  1,  116  S.  W.  902,—  on  the  lawfulness  of 
conspiracies  in  restraint  of  trade;  Globe  &  R.  F.  Ins.  Co.  v.  Firemen's  Fund 
Ins.  Co.  97  Miss.  148,  29  L.R.A. (N.S.)  869,  52  So.  454,  holding' that  corporations 
or  private  persons  cannot  conspire  to  illegally  destroy  plaintiff's  business  by 
wrongfully  inducing  his  agents  to  leave  his  employment  and  enter  their  own ; 
People  ex  rel.  Gill  v.  Walsh,  6  N.  Y.  Crim.  Rep.  292,  on  a  labor  strike  as  a  con- 
spiracy to  injure  trade;  Martens  v.  Reilly,  109  Wis.  464,  84  N.  W.  840,  holding 
that  a  breach  of  contract  being  an  unlawful  act,  a  conspiracy  to  procure  a  breach 
of  a  contract  gives  rise  to  a  cause  of  action  against  all  persons  so  conspiring, 
or  connected  therewith;  McMillan  v.  Barton,  19  Ont.  App.  Rep.  602.  on  the 
conspiracy  to  prevent  a  person  recovering  against  another,  by  the  substitution 
of  some  other  person  for  him.  as  being  an  actionable  wrong:   Quinn  v.  Leathern 


127  NOTES  ON  ENGLISH  RULING   CASES.        |1  E.  R.  C.  717 

[1901]  A.  C.  495,  1  13.  R.  C.  197,  70  L.  J.  P.  C.  N.  S.  76,  65  J.  P.  70S,  50  Week. 
Rep.  339,  S5  L.  T.  N.  S.  289,  17  Times  L.  R.  749  (affirming  [1899]  2  Ir.  R. 
067),  holding  that  a  conspiracy  to  induce  customers  and  servants  to  break  their 
contracts   with   the   plaintiffs   is   actionable. 

Cited  in  2  Cooley  Torts,  3d  ed.  594,  on  liability  for  conspiracy  to  prevent  em- 
ployment. 

Distinguished  in  United  States  Teleph.  Co.  v.  Centra!    Union   Teleph.   Co.  171 
Fed.  130,  holding  that  agreement  by  local  telephone  company  with  long  distance 
company   not   to   permit   connections   with    any    other   company    for   ninety   years 
was  void. 
Judgment   against   joint    wrongdoers. 

Cited  in  Ferguson  v.   Roblin,   17  Out.  L.   Rep.   167,  holding  that  in  an   action 
against  both  master  and  servant  for  the  servant's  wrong  doing,  a  judgment  may 
be  entered   against  both. 
Compelling-  performance  of  contract  for  personal  services. 

Cited    in    Sharkey    v.    McDermott,    16    Mo.    App.    80,    on    the    restraining    of   a 
party   from   doing  an    act  contrary   to   the   terms   of   his   contract. 
Master's  liability  for  acts  of  servant. 

Cited  in  1  Thompson  Neg.  481,  on  master's  liability  for  acts  of  servant. 

1   E.   R.   C.   717,   BOWEN   v.   HALL,   L.   R.   6   Q.   B.   Div.   333,  44   L.   T.   N.   S. 

75,  29  Week.   Rep.  367,  50  L.  J.  Q.  B.  N.   S.   305,  45  J.  P.   373. 
Actionable  procurement  of  another  to  break  contract. 

Cited  in  American  Federation  of  Labor  v.  Buck's  Stove  &  Range  Co.  33  App. 
D.  C.  117,  32  L.R.A.  (N.S.)  74S,  holding  that  labor  union  may  be  enjoined  from 
placing  name  of  concern  on  unfair  list,  to  coerce  its  customers  to  refrain  from 
dealing  with  it;  Kemp  v.  Division  No.  241,  153  111.  App.  344,  holding  that  em- 
ploye has  cause  of  action  against  union  for  causing  his  discharge;  Carter  v. 
Oster,  134  Mo.  App.  146,  112  S.  W.  995,  holding  that  employees  are  answer- 
able for  keeping  another  out  of  employment  when  means  used  to  do  so  are 
unlawful;  Globe  &  R.  F.  Ins.  Co.  v.  Firemen's  Fund  Ins.  Co.  97  Miss.  14S,  29 
L.R.A.  (N.S.)  869,  52  So.  454,  holding  that  one  is  liable  for  maliciously  en- 
ticing away  another's  servant  for  sole  purpose  of  harming  master;  Old  Do- 
minion S.  S.  Co.  v.  McKenna,  18  Abb.  N.  C.  262,  30  Fed.  48,  holding  that  combi- 
nations designed  to  interefere  with  perfect  freedom  of  employers  in  proper 
management  of  business  are  illegal  and  acts  done  in  furtherance  of  such  design, 
accompanied  by  damage  are  actionable;  Seelig  v.  Dumas.  IS  La.  Ann.  1494, 
21  So.  91,  holding  that  lessor  of  furniture  can  recover  it  or  its  value  from  person 
fraudulently  buying  it  from  lessee;  Huskie  v.  Griffin,  75  N.  11.  345,  27  L.R.A. 
(N.S.)  966,  74  Atl.  595,  holding  that  one  protesting  against  employment  of 
another,  for  sole  purpose  of  injuring  him,  may  be  held  liable  for  damages  due 
to  consequent  loss  of  employment;  Schonwald  v.  Ra^ains.  32  Okla.  223.  39 
L.R.A. (N.S.)  S54,  122  Pac.  203,  holding  that  it  is  actionable  tort  for  one  to 
maliciously  interfere  with  contract  between  two  parties  and  induce  one  of  them 
to  break  contract  to  other's  injury;  Jones  v.  Leslie,  6L  Wash.  107,  48  L.R.A. 
(N.S.)  893,  112  Pac.  81,  Ann.  Cas.  1912B,  1158,  holding  that  servant  may  re- 
cover damages  from  former  employer  who  notified  prospective  employer  that  if 
he  hired  plaintiff  defendant  would  discontinue  business  relations  existing  between 
them;  Dunfee  v.  Childs,  59  W.  Va.  257,  53  S.  E.  209,  holding  that  employer  has 
cause  of  action  against  person  maliciously  enticing  employe  to  quit;  Brennan 
v.   United   Hatters'   of   N.   A.   Local    No.    17,    73    N.   J.    L.    729.    9    L.R.A.  (N.S.) 


1  E.  R.  C.  717]        NOTES  ON  ENGLISH  RULING  CASES.  128 

254,  118  Am.  St.  Rep.  727,  65  Atl.  105,  9  Ann.  Gas.  698;  Lally  v.  Cantwcll,  30 
Mo.  App.  524, — holding  making  false  statements  in  regard  to  plaintiff  so  that  he 
was  discharged  from  his  employment  actionable;  Chambers  v.  Baldwin,  91  Ky. 
121,  11  L.R.A.  545,  34  Am.  St.  Rep.  165,  15  S.  W.  57;  McDonald  v.  Edwards, 
20  Misc.  523,  46  N.  Y.  Supp.  672;  Passaic  Print  Works  v.  Ely  &  W.  Dry  Goods 
Co.  62  L.R.A.  673,  44  C.  C.  A.  426,  105  Fed.  163;  McMillan  v.  Barton,  19  Ont. 
App.  602;  Mogul  S.  S.  Co.  v.  McGregor,  L.  R.  21  Q.  B.  Div.  544,  L.  R.  23  Q.  B. 
Div.  598,  58  L.  J.  Q.  B.  N.  S.  465,  61  L.  T.  N.  S.  820;   Allen  v.  Flood   [1898] 

A.  C.  1,  67  L.  J.  Q,  B.  N.  S.  119,  77  L.  T.  N.  S.  717,  46  Week.  Rep.  258,  62  J.  P. 
595,  17  Eng.  Rul.  Cas.  285,  14  Times  L.  R.  125  (reversing  [1S95]  2  Q,  B.  21, 
64  L.  J.  Q.  B.  N.  S.  665,  14  Reports  397,  43  Week.  Rep.  453,  59  J.  P.  388),— 
as  to  when  action  lies  for  inducing  third  person  to  break  contract  with  plaintiff; 
Morehouse  v.  Terrill,  111  111.  App.  460;  Gore  v.  Condon,  S7  Md.  368,  40  L.R.A. 
382,  67  Am.  St.  Rep.  352,  39  Atl.  1042;  Knickerbocker  Ice  Co.  v.  Gardiner  Dairy 
Co.  107  Md.  556,  16  L.R.A.  (N.S.)  746,  69  Atl.  405;  Beekman  v.  Marstcrs,  195 
Mass.  205,  11  L.R.A.  (N.S.)  201,  122  Am.  St.  Rep.  232,  80  N.  E.  817,  11  Ann. 
Cas.  332;  McGurk  v.  Cronenwett,  199  Mass.  457,  19  L.R.A.  (N.S.)  561,  85  N. 
E.  576;  Van  Horn  v.  Van  Horn,  56  N.  J.  L.  318,  28  Atl.  669;  American 
Law  Book  Co.  v.  Edward  Thompson  Co.  41  Misc.  396,  84  N.  Y.  Supp.  225;  Ray- 
mond v.  Yarrington,  96  Tex.  443,  62  L.R.A.  962,  97  Am.  St.  Rep.  914,  73  S.  W. 
800;  West  Virginia  Transp.  Co.  v.  Standard  Oil  Co.  50  W.  Va.  611,  56  L.R.A. 
S04,  88  Am.  St.  Rep.  895,  40  S.  E.  59]  ;  Martens  v.  Reilly,  109  Wis.  464,  84  N. 
W.  840;  Angle  v.  Chicago,  St.  P.  M.  &  O.  R.  Co.  151  U.  S.  1,  38  L.  ed.  63,  14 
Sup.  Ct.  Rep.  240;  Toledo,  A.  A.  &  N.  M.  R.  Co.  v.  Pennsylvania  Co.  19  L.R.A. 
387,  5  Inters.  Com.  Rep.  522,  54  Fed.  730;  Wells  &  R.  Co.  v.  Abraham,  146  Fed. 
190;  Dr.  Miles  Medical  Co.  v.  Jaynes  Drug  Co.  149  Fed.  838;  Temperton  v. 
Russell  [1S93]  1  Q.  B.  715,  62  L.  J.  Q.  B.  N.  S.  412,  4  Reports  376,  69  L.  T.  N.  S. 
78,  41   Week.   Rep.  '565,  57  J.   P.   676;    Quinn  v.   Leathern   [1001]    A.   C.  495,   1 

B.  R.  C.  197,  70  L.  J.  P.  C.  N.  S.  76,  65  J.  P.  70S,  50  Week  Rep.  139,  85  L.  T. 
N.  S.  289,  17  Times  L.  R.  749  (affirming  [1899]  2  Ir.  R.  667) ,— holding  one 
who  maliciously  interferes  and  causes  one  party  to  break  contract  is  liable  to 
other  party  injured  thereby;  London  Guarantee  &  Acci.  Co.  v.  Horn,  206  Til. 
493,  99  Am.  §t.  Rep.  185,  69  N.  E.  526  (affirming  101  111.  App.  355),  holding 
one  whose  discharge  frofn  employment  is  produced  by  a  third  party  has  a  right 
of  action  against  such  party,  where  the  employment,  although  terminable  at 
will,  would  have  continued  indefinitely  but  for  his  interference,  and  where 
his  only  motive  was  to  injure  the  employee  because  the  latter  refused  to  re- 
lease a  cause  of  action  unconnected  with  the  continuance  of  the  employment,  for 
which  such  third  party  was  liable;  Perkins  v.  Pendleton,  90  Me.  166,  60  Am.  St. 
Rep.  252,  38  Atl.  96;  Lucke  v.  Clothing  Cutters'  &  T.  Assembly  No.  7507,  K.  L. 
77  Md.  396,  19  L.R.A.  408,  39  Am.  St.  Rep.  421,  26  Atl.  505,— holding  same  where 
the  object  was  coercion  because  the  plaintiff  was  not  a  member  of  a  labor  union; 
Boyson  v.  Thorn,  98  Cal.  578,  21  L.R.A.  233,  33  Pac.  492,  holding  an  action  will 
not  lie  against  one,  who,  from  malicious  motives,  but  without  threats,  violence, 
falsehood,  deception,  or  benefit  to  himself,  induces  another  to  violate  his  con- 
tract with  plaintiff,  witli  whom  he  does  not  stand  in  the  relation  of  master 
and  servant,  or  any  other  personal  relation;  Employing  Printers'  Club  v.  Doc- 
tor Blosser  Co.  122  Ga.  509,  69  L.R.A.  90.  306  Am.  St.  Rep.  137,  50  S.  E.  353, 
2  Ann.  Cas.  694,  holding  the  malicious  procurement  of  a  breach  of  contract  of 


129  NOTES  ON  ENGLISH  RULING  CASES.        [1  E.  R.  C.  717 

employment,  resulting  in  damage,  when  the  procurement  was  during  the  sub- 
sistence of  the  contract,  is  an  actionable  wrong;  Edison  General  Electric  Co.  v. 
Vancouver  &  N.  W.  Tramway  Co.  4  B.  C.  460^  as  to  liability  for  pursuading 
breach  of  such  contract. 

Cited  in  notes  in  5  L.R.A.  (N.S.)  1098,  on  civil  liability  for  enticing  servant 
to  quit;  21  L.R.A.  233,  235,  238,  on  liability  for  inducing  breach  of  contract; 
17   Eng.  Rul.   Cas.  353,  on  liability  for  inducing  breach  of  contract  of  service. 

Cited  in  Hollingsworth  Contr.  290,  on  incurring  liability  from  contract  to 
which  one  was  not  a  party,  by  inducing  party  to  break  it;  2  (ooley  Torts, 
3d  ed.  594,  on  liability  for  conspiracy  to  prevent  employment;  2  Cooley  Torts, 
3d  ed.  599,  on  liability  for  combination  to  interfere  with  trade  and  labor ; 
1  Thompson  Neg.  527,  on  liability  of  principal  for  acts  of  agent  in  boycotting 
a  third  person;  Tiffany  Ag.  329,  on  liability  of  third  person  for  causing  loss  of 
service   by   wrongful   act. 

Distinguished  in  Glencoe  Land  &  Gravel  Co.  v.  Hudson  Bros.  Commission  Co. 
138  Mo.  439,  36  L.R.A.  804,  60  Am.  St.  Rep.  560,  40  S.  W.  93,  holding  an  ac- 
tion cannot  be  maintained  for  inducing  a  third  party  to  break  his  contract 
with  plaintiff,  where  the  relation  of  master  and  servant  does  not  exist  be- 
tween the  parties  to  the  contract;  Macauley  Bros.  v.  Tierney,  19  R.  I.  255,  37 
L.R.A.  455,  61  Am.  St.  Rep.  770,  33  Atl.  1,  holding  notices  sent  out  by  associa- 
tion of  master  plumbers  to  wholesale  dealers  in  plumbers  supplies  not  to  sell 
to  others  than  members  of  association  under  penalty  of  withdrawal  of  latters 
patronage,   violated   no    legal    rights    of   the   nonmembers. 

—  Threats  causing  employees  to  quit  service. 

Cited  in  O'Brien  v.  People,  216  111.  354,  108  Am.  St.  Rep.  219.  75  N.  E.  108, 
3  Ann.  Cas.  966,  holding  inducing  complainant's  employees  to  leave  their  employ- 
ment by  threats  and  unlawful  persuasion,  an  actionable  wrong;  George  Jonas 
Glass  Co.  v.  Glass  Bottle  Blowers'  Asso.  77  N.  J.  Eq.  219,  41  L.R.A.  (N.S.) 
445,  79  Atl.  262,  sustaining  injunction  restraining  defendants  from  using  either 
coercion  or  persuasion  in  order  to  bring  about  breaches  of  contracts  of  personal 
service;  Lohse  Patent  Door  Co.  v.  Fuelle,  215  Mo.  421,  22  L.R.A. (N.S.)  607, 
128  Am.  St.  Rep.  492,  114  S.  W.  997;  Barr  v.  Essex  Trades  Council,  53  N.  J.  Eq. 
101,  30  Atl.  881;  Old  Dominion  S.  S.  Co.  v.  McKenna,  30  Fed.  4S;  Hopkins  v. 
Oxley  Stave  Co.  28  C.  C.  A.  99,  49  U.  S.  App.  709,  83  Fed.  912;  Doremus  v.  Hen- 
nessy,  176  111.  608,  43  L.R.A.  797,  68  Am.  St.  Rep.  203,  52  N.  E.  924  (affirming 
62  111.  App.  391), — holding  boycott  an  actionable  wrong;  Brauch  v.  Roth,  10 
Ont.  L.  Rep.  284;  Barnes  v.  Chicago  Typographical  Union  No.  16,  232  111. 
424,  14  L.R.A.(N.S.)  1018,  83  N.  E.  940,  13  Ann.  Cas.  54,— holding  a  combination 
by  a  labor  union  and  its  members  for  the  purpose  of  intentionally  injuring 
the  business  of  an  employer  of  labor  in  order  to  compel  him  to  accede  to  the  de- 
mands of  the  union  which  he  has  a  legal  right  to  refuse  is  unlawful,  and  it  is 
as  unlawful  to  produce  such  illegal  result  by  mere  persuasion  as  it  is  to 
produce  it  by  resort  to  acts  of  physical  violence. 

—  Element  of  malice. 

Cited  in  Tubular  Rivet  &  Stud  Co.  v.  Exeter  Boot  &  Shoe  Co.  86  C.  C.  A.  648, 
159  Fed.  824,  holding  where  defendant  corporation  induced  another  to  break 
a  contract  to  furnish  certain  machines,  plaintiff  was  entitled  to  recover  from 
defendant  damages  sustained  thereby,  without  proof  that  defendant  was  actuated 
by  actual  malice  or  ill  will;  London  Guarantee  &  Acci.  Co.  v.  Horn,  101  111.  App. 
Notes  on  E.   R.  C— 9. 


1  E.  R.  C.  717]        NOTES  ON  ENGLISH  RULING  CASES.  130 

355,  holding  guarantee  company  liable  to  employe  for  maliciously  causing 
li is  discharge;  Heywood  v.  Tillson,  75  Me.  225,  46  Am.  Rep.  373,  holding  that 
landlord  has  no  action  against  employer  of  tenant  threatening  to  discharge 
latter  unless  he  left  house,  though  act  was  malicious;  South  Wales  Miners' 
Federation  v.  Glamorgan  Coal  Co.  [1905]  A.  C.  239,  1  B.  R.  C.  1,  2  Ann. 
Cas.  436,  74  L.  J.  K.  B.  N.  S.  525,  53  Week.  Rep.  593,  92  L.  T.  N.  S.  710,  21 
Times  L.  R.  441  (affirming  [1903]  2  K.  B.  545,  72  L.  J.  K.  B.  N.  S.  893,  89 
L.  T.  N.  S.  393  which  reversed  [1903]  1  K.  B.  118,  71  L.  J.  K.  B.  N.  S.  1001,  87 
L.  T.  N.  S.  232),  on  wrongful  intent  as  element  in  tortious  interference  with 
another's  servants. 

Cited  in  Freund  Police  P.  323,  on  intimidation  and  coercion  by  combinations 
of    laborers. 
—  Pleading  and   form  of  action. 

Cited   in   May   v.    Wood,    172   Mass.    Ill,   51   N.   E.   191    (dissenting   opinion), 
as   to   sufficiency   of   declaration    in. 
Actionable  wrongs  operating  through  third  persons. 

Cited  in  Canada  Permanent  Mortg.  Corp.  v.  School  Dist.  16  Manitoba 
Law  (Can.)  61S,  holding  publication  that  plaintiff's  house  is  haunted  is  ac- 
tionable under  statute  if  special  damages  result,  though  there  be  no  actual 
malice;  Tasker  v.  Stanley,  153  Mass.  148,  10  L.R.A.  468,  26  N.  E.  417,  holding 
in  an  action  for  procuring  and  enticing  the  plaintiff's  wife  to  be  separated  from 
him,  the  defendant  may  disprove  any  intent  in  advising  the  wife  to  cause  a  sepa- 
ration, and  show  that  his  advice  was  honestly  given;  Nolin  v.  Pearson,  191 
Mass.  283,  4  L.R.A.  (N.S.)  643,  114  Am.  St.  Rep.  605,  77  N.  E.  890,  6  Ann.  Cas. 
658;  Quick  v.  Church,  23  Ont.  Rep.  262,  holding  when  a  husband  leaves  his 
Avife  to  live  in  adultery  with  another  woman  by  her  procurement,  and  lives 
and  continues  by  such  procurement  to  live  in  adultery  with  her,  whereby  his 
affections  are  alienated  from  his  wife  and  she  is  deprived  of  her  means  of  sup- 
port, an  action  lies  at  common  law  by  wife  against  such  woman. 

Distinguished  in  Duffries  v.  Duffries,  76  Wis.  374,  8  L.R.A.  420,  20  Am.  St. 
Rep.  79,  45  N.  W.  522,  holding  neither  at  common  law  nor  under  the  statutes 
can  a  wife  maintain  an  action  against  one  enticing  away  her  husband  for  the 
loss  of  his   society  and   support. 
New  trial  on  appeal. 

(  ited  in  Wills  v.  Carman,  14  Ont.  App.  656   (dissenting  opinion),  as  to  when 
venire  de  novo  should  be  awarded  on  allowing  appeal. 
Damnum  absque  injuria. 

Distinguished  in  Woolley  v.  Broad   [1892]   1  Q.  B.  806,  61  L.  J.  Q.  B.  N.  S. 
259,  66  L.  T.  N.  S.  680,  40  Week.  Rep.  511,  holding  one  who  had  the  exclusive 
trading   rights   in   a   copyrighted   design    suffered   no    legal    injury   which   would 
enable  him  to  sue  an  infringer. 
Liability  for  wilfully  harming  another  in  exercise  of  legal  right. 

Cited  in  Arnold  v.  Moffitt,  30  R.  I.  310,  75  Atl.  502,  holding  that  act  lawful 
in  itself  is  not  converted  by  malicious  or  bad  motive  into  unlawful  act  so  as  to 
make  doer  of  act  liable  to  civil  action. 

Cited  in  notes  in  62  L.R.A.  679,  680,  682,  702,  706,  714,  719,  on  effect  of  bad 
motive  to  make  actionable  what  would  otherwise  not  be;  25  E.  R.  C.  82,  on 
liability  for  wilfully  and  intentionally  harming  another  in  exercise  of  a  legal 
right. 


131  NOTES  UN  ENGLISH  RULING  CASES.       [l    E.  R.  C.  729 

1  E.  R.  C.  729,  CHASEMORE  v.  RICHARDS,  7  H.  L.  (as.  349,  5  Jur.  N.  S. 
873,  7  Week.  Rep.  685,  29  L.  J.  Exch.  N.  S.  81,  affg.  the  decision  of  the 
Court  of  Exchequer  Chamber,  reported  in  2  Hurlst.  &  N.  1GS. 
Rights  of  land  owners  in  surface  and  percolating  waters  relatively  to  each 
other. 
Cited  in  Tampa  Waterworks  Co.  v.  Cline,  37  Fla.  5S0,  33  L.R.A.  376, 
53  Am.  St.  Rep.  262,  20  So.  780,  holding  proprietor  has  right  to  reasonable  use 
of  surface  water  flowing  in  well-defined  channels;  Ryan  v.  Quinlan,  45  .Mont. 
521,  124  Pac.  512,  holding  that  owner  of  land  may  use  percolating  water  as  he 
pleases  for  improving  his  land,  though  such  use  may  injure  adjoining  owner ; 
Miller  v.  Black  Rock  Springs  Improv.  Co.  99  Va.  747,  80  Am.  St.  Rep.  924,  40 
S.  E.  27;  Case  v.  Hoffman,  100  Wis.  314,  44  L.R.A.  72S,  72  N.  W.  390,— holding 
subsurface  water  deemed  part  of  soil  itself  and  to  same  extent  subject  to 
whatever  disposition  the  owner  of  the  land  may  choose  to  make;  Gagnon  v. 
French  Lick  Springs  Hotel  Co.  163  Ind.  687,  68  L.R.A.  175,  72  N.  E.  849,  hold- 
ing a  landowner  cannot  exercise  unlimited  and  irresponsible  control  over  subter- 
ranean waters  on  his  own  land  without  regard  to  injuries  to  others,  but  local 
conditions,  the  purpose  of  the  diversion,  the  use  intended,  and  all  other  circum- 
stances are  to  be  considered;  McBryan  v.  Canadian  P.  R.  Co.  29  Can.  S.  C.  359, 
holding  a  laud  owner  might  dam  back  irrigation  overflow  without  liability  to 
a  neighbor;  Dawson  v.  Murray,  29  U.  C.  Q.  B.  464,  on  absence  of  right  to  flow 
of  other  than  natural  water  courses;  Nichol  v.  Canada  Southern  R.  Co.  40  U. 
C.  Q.  B.  5S3,  holding  failure  of  railroad  to  provide  for  escape  of  surface  water 
was  not  actionable;  Williamson  v.  Jones,  39  W.  Va.  231,  25  L.R.A.  222,  19  S.  E. 
436,  on  ownership  of  percolations  in  place  in  the  soil;  Jordeson  v.  Sutton,  S. 
&  D.  Gas  Co.  [1899]  2  Ch.  217,  68  L.  J.  Ch.  N.  S.  457,  80  L.  T.  N.  S.  815,  63 
J.  P.  692,  15  Times  L.  R.  374,  as  to  soil  owner's  rights  in  percolating  waters; 
Bower  v.  Sandford,  5  Times  L.  R.  570,  as  to  right  of  landowner  to  subterranean 
water  running  in  a  well  defined  channel;  Beer  v.  Stroud,  19  Ont.  Rep.  10,  on 
the  distinction  between  surface  water  at  large  and  such  water  running  in  a 
defined  course;  Brain  v.  Marfell,  41  L.  T.  N.  S.  455,  44  J.  P.  56;  R.  v.  Metro- 
politan Bd.  of  Works,  32  L.  J.  Q.  B.  N.  S.  105,  3  Best.  &  S.  710,  9  Jur.  X.  S 
1008,  S  L.  T.  N.  S.  23S,  11  Week.  Rep.  492;  Bradford  Corp.  v.  Pickles  [1S94] 
3  Ch.  53  [1S95]  A.  C.  587,  64  L.  J.  Ch.  N.  S.  759,  11  Reports,  286,  73  L.  T.  N.  S 
353,  44  Week.  Rep.  190,  60  J.  P.  C.  3, — holding  owner  of  land  containing  under 
ground  water,  which  percolates  by  undefined  channels  and  flows  to  land  of  a  neigh- 
bor, has  the  right  to  divert  or  appropriate  the  percolating  water  within  his  own 
land  so  as  to  deprive  his  neighbor  of  it;  M'Evoy  v.  Great  Northern  R.  Co. 
11900]  2  Ir.  Q.  B.  325,  holding  same  and  that  a  diverting  channel  was  solely 
the  property  of  the  diverting  owner;  Ballacorkish  Silver  Lead  &  Copper  Min. 
Co.  v.  Harrison.  L.  R.  5  P.  C.  49,  43  L.  J.  P.  C.  N>  S.  19,  29  L.  T.  N.  S.  658,  22 
Week.  Rep.  277,  holding  same  where  mines  worked  under  Crown  lease  destroyed 
surface  springs;  Black  v.  Bally  men  a,  Ir.  L.  R.  17  Eq.  459,  holding  same  but 
that  the  intercepted  waters  in  question  were  not  undefined;  Ewart  v.  Belfast 
Poor-Law  Guardians,  Ir.  L.  R.  9  Eq.  172,  holding  defendant  had  right  to  divert 
water  in  underground  channel  which  was  not  known  though  definable  by  exca- 
vation; Bradford  Corp.  v.  Ferrand  [1902]  2  Oh.  Div.  655,  71  L.  J.  Ch.  N.  S 
859,  87  L.  T.  N.  S.  388,  51  Week.  Rep.  122,  67  J.  P.  21,  18  Times  L.  R.  830, 
holding  if  underground  water  flows  in  a  definite  channel  into  a  well  supply- 
ing a  stream  above  ground,  but  the  existence  and  course  of  that  channel  are 
not  known  and  cannot  be  ascertained  except  by  excavation,  the  lower   riparian 


1  E.  R.  C.  729]       KOTES  ON  ENGLISH  RULING  CASES.  132 

proprietors  on  the  banks  of  the  stream  have  no  right  of  action  for  the  abstrac- 
tion of  the  underground  water. 

Cited  in  notes  in  64  L.R.A.  238,  on  correlative  rights  in  percolating  waters; 
1  Eng.  Rul.  Cas.  271,  on  liability  for  injury  by  water,  etc.,  escaping  from 
place  where  it  is  stored;  30  L.R.A.  667,  on  right  of  prior  appropriation  of 
water. 

Cited  in  2  Kinkead  Torts,  1300,  1301,  on  what  are  subterranean  streams  and 
percolating  waters;  1  Thompson  Neg.  646,  on  liability  of  one  artificially  col- 
lecting water  on  his  own  land  for  injuries  to  adjoining  land  from  percolations 
through  soil. 

Distinguished  in  Pixley  v.  Clark,  35  N.  Y.  520,  91  Am.  Dec.  72;  Wilson  v. 
New  Bedford,  108  Mass.  261,  11  Am.  Rep.  352, — holding  one  who  accumulates 
water  artificially  on  his  own  land  is  liable  for  injuries  resulting  to  adjoining 
land  from  percolations  through  the  soil  caused  by  the  pressure  of  the  accu- 
mulated mass  or  from  the  obstruction,  by  that  cause,  of  the  natural  passage 
of  water  through  the  soil  from  such  land;  Ballard  v:  Tomlinson,  L.  R.  26  Ch. 
Div.  194,  L.  R.  29  Ch.  Div.  115,  54  L.  J.  Ch.  N.  S.  454,  52  L.  T.  N.  S.  942. 
33  Week.  Rep.  533,  49  J.  P.  692,  holding  land  owner  not  entitled  to  render 
underground  water  unfit  for  use  by  pouring  sewage  into  it;  Hodgkinson  v. 
Ennor,  4  Best.  &  S.  229,  32  L.  J.  Q.  B.  N.  S.  231,  9  Jur.  N.  S.  1152,  8  L.  T. 
N.  S.  451,  11  Week.  Rep.  775,  holding  defendant  liable  for  polluting  under- 
ground stream  which  opened  into  a  well   defined  stream  beside  plaintiff's  land 

Disapproved  in  Hathorn  v.  Natural  Carbonic  Gas  Co.  194  N.  Y.  326,  23 
L.R.A.  (N.S.)  436,  12S  Am.  St.  Rep.  555,  87  N.  E.  504,  16  Ann.  Cas.  989, 
holding  landowner  has  no  right  by  use  of  pumps  and  other  apparatus  to  greatly 
increase  flow  of  percolating  mineral  waters  for  purpose  of  sale;  Pence  v.  Carney, 
58  W.  Va.  296,  6  L.R.A. (N.S.)  266,  112  Am.  St.  Rep.  963,  52  S.  E.  702,  hold- 
ing the  owner  of  land  who  explores  for  and  produces  subterranean  percolating 
water  within  the  boundary  of  his  land  is  limited  to  a  reasonable  and  beneficial 
use  of  such  water  when  to  otherwise  use  it  would  deplete  the  water  supply  of  a 
valuable  natural  spring  of  another  on  adjoining  or  neighboring  land  and  impair 
or  destroy  such   spring. 

)      The  decision  of  the  court  of  Exechequer  Chamber  was  cited  in  Swett  v.  Cutts, 
50  N.  H.  439,  9  Am.  Rep.  276,  holding  that  owner  of  land  may  use  percolat- 
ing water  as  he  pleases  for   improving  his   land,   though   such  use   may   injure 
adjoining   owner. 
—  Interception  by  wells  or  the  like. 

Referred  to  as  leading  case  in  Erickson  v.  Crookston  Waterworks,  Power  & 
Light  Co.  105  Minn.  182,  17  L.R.A. (N.S.)  650,  117  N.  W.  435,  holding  right 
to  pump  from  artesian  basin  was  correlative  and  subject  to  reasonable  like  uses. 

Cited  in  Chesley  v.  King,  74  Me.  164,  43  Am.  Rep.  569;  Davis  v.  Spaulding, 
157  Mass.  431,  19  L.R.A.  102,  32  N.  E.  650.;  Mosier  v.  Caldwell,  7  Nev.  363; 
Chase  v.  Silverstone,  62  Me.  175,  16  Am.  Rep.  419, — holding  the  defendant 
having  dug  his  well  on  his  own  land  in  good  faith  for  the  obtaining  of  water 
for  his  domestic  uses,  is  not  liable  for  any  damage  which  incidentally  resulted 
to  the  plaintiff  by  reason  of  thereby  diverting  the  water  which  had  been  accus- 
tomed to  percolate  or  flow,  in  an  unknown  subterranean  current,  into  the  plain- 
tiff's spring;  Delhi  v.  Youmans,  45  N.  Y.  362,  6  Am.  Rep.  100  (affirming  50 
Barb.  316),  holding  same,  contra  if  the  waters  before  interception  had  become 
a  stream;  Van  Wycklen  v.  Brooklyn,  118  N.  Y.  424,  24  N.  E.  179  (reversing 
tin  other  grounds  41  Hun,  418),  to  same  point;  Wheelock  v.  Jacobs,  70  Vt.  162, 


133  NOTES  ON  ENGLISH  RULING  CASES.        [1  E.  R.  C.  720 

43  L.R.A.  105,  67  Am.  St.  Rep.  659,  40  Atl.  41,  holding  rule  applied  to  water 
which  seeped  to  an  impervious  stratum  where  it  flowed  indefinitely  and  was 
collected;  Ocean  Grove  Camp  Meeting  Asso.  v.  Asbury  Park,  40  N.  J.  Eq.  447, 
3  Atl.  168,  holding  waters  so  taken  might  be  transported  for  use  on  other  lands; 
Houston  &  T.  C.  R.  Co.  v.  East,  98  Tex.  146,  66  L.R.A.  738,  107  Am.  St.  Rep. 
620,  81  S.  W.  279,  4  Ann.  Cas.  827,  holding  the  uses  to  which  such  water  may 
fairly  be  put  are  unlimited;  Phelps  v.  Nowlen,  72  N.  Y.  39,  28  Am.  Rep.  9.'!, 
holding  interception  done  to  cut  off  a  well  which  tapped  a  spring  by  percola- 
tion was  not  actionable;  Covert  v.  Cranford,  141  N.  Y.  521,  38  Am.  St.  Rep. 
826,  36  N.  E.  597,  on  rights  in  natural  waters  subterraneously  tapped  and  low- 
ered; Milton  v.  Glen-Moray  Glenlivet  Distillery  Co.  1  Sc.  Sess.  Cas.  (5  Series) 
135,  holding  wells  dug  near  a  river  and  thereby  intercepting  waters  by  perco- 
lation were  not  a  wrong  to  other  riparian   owners. 

Cited  in  note  in  1  Eng.  Rul.  Cas.  763,  on  nonliability  for  diminution  of  water 
on  adjoining  land  by  pumping  from  well  on  one's  own  land. 

Cited  in  2  Cooley  Torts,  3d  ed.  1199,  1203,  on  liability  for  drying  off  sub- 
terranean waters  of  neighbor  by  excavation  on  own  land;  Freund  Police  P.  452, 
on  right  of  owner  of  land  to  intercept  underground   waters. 

The  decision  of  the  court  of  Exchequer  Chamber  was  cited  in  Willis  v.  Perry, 
92  Iowa,  297,  26  L.R.A.  124,  60  N.  W.  727,  holding  that  use  of  water  from  flow- 
ing well  for  usual  domestic  purposes  cannot  lawfully  be  impaired  by  pumping 
from  another  well  which  renders  same  subterranean  stream  for  city  water 
supply;  Erickson  v.  Crookston  Waterworks  Power  &  Light  Co.  100  Minn.  483, 
8  L.R.A. (N.S.)  1250,  111  N.  W.  391,  10  Ann.  Cas.  843,  holding  that  law  of  cor- 
relative rights  applies  to  use  by  adjoining  landowners  of  waters  drawn  from 
artesian  basin;  Frazier  v.  Brown.  12  Ohio  St.  294,  holding  that  no  damages  are 
recoverable  against  one  who  digs  "hole"  on  his  land  and  thereby  cuts  off  under- 
ground waters  from  adjoining  land. 
—  Diversion  of  surface  waters  and  streams. 

Cited  in  Katz  v.  Walkinshaw,  141  Cal.  116,  64  L.R.A.  236,  99  Am.  St.  Rep. 
35,  70  Pac.  663;  Emporia  v.  Soden,  25  Kan.  588,  37  Am.  Rep.  265,— holding 
owner  of  land  may  appropriate  it  to  any  use,  and  in  any  amount  without 
reference  to  the  effect  of  such  appropriation  upon  his  neighbor's  land  or  supply 
of  water  but  he  may  not  thus  indirectly  destroy  or  diminish  the  flow  of  a  nat- 
ural surface  stream  to  injury  of  a  riparian  owner  thereof;  Western  Maryland 
R.  Co.  v.  Martin,  110  Md.  554,  73  Atl.  267, 'holding  that  party  is  not  liable 
for  causing  diversion  of  water  running  underground,  unless  such  water  was 
accustomed  to  flow  in  fixed  channel  or  in  uniform  direction;  Meeker  v.  East 
Orange,  77  N.  J.  L.  6*23,  25  L.R.A.  (N.S.)  465,  134  Am.  St.  Rep.  798,  74  Atl. 
379  (reversing  76  N.  J.  L.  435,  70  Atl.  360),  holding  that  percolating  under- 
ground waters  may  not  be  withdrawn  for  distribution  or  sale,  if  it  thereby 
result  that  owner  of  adjacent  land  is  interfered  with  in  reasonable  use  of  such 
waters;  .Taylor  v.  Fickas,  64  Ind.  167,  31  Am.  Rep.  114;  Livingston  v.  Mc- 
Donald, 21  Iowa,  ]60,  89  Am.  Dec.  563, — holding  the  owner  of  the  higher  land 
has  an  unqualified  right  to  drain  for  agricultural  purposes  the  surface  water 
or  water  flowing  in  no  regular  or  definite  channel  upon  his  own  lands;  Smith 
v.  Brooklyn,  18  App.  Div.  340,  46  N.  Y.  Supp.  141,  holding  that  right  of  owner 
of  land  to  divert  percolating  water  does  not  extend  to  authorizing  destruction 
of  stream  by  cutting  off  source  of  supply  when  acts  causing  such  result  are  not 
done  for  beneficial  result  of  land  itself;  Smith  v.  Brooklyn,  160  N.  Y.  357,  45 
L.R.A.  664,  54  N.  E.  787,  holding  land  owner  may  not  divert  and  diminish  the 


1  E.  R.  C.  729]        NOTES  ON  ENGLISH  RULING  CASES.  134 

natural  flow  of  a  surface  stream  by  preventing  its  usual  and  natural  supply  or 
by  causing  through  suction  or  other  methods,  a  subsidence  of  its  waters;  Wa- 
tuppa  Reservoir  Co.  v.  Fall  River,  147  Mass.  548,  1  L.R.A.  466,  IS  N.  E.  465 
(dissenting  opinion),  as  to  right  of  proprietor  to  divert  water  from  stream; 
Arthur  v.  Grand  Trunk  R.  Co.  22  Ont.  App.  89,  holding  that  where  water  course 
has  been  diverted  by  railroad  company  constructing  line  without  filing  maps 
or  giving  notice,  landowner   has  right  of  action. 

Cited  in  notes  in  17  E.  R.  C.  474,  548, — on  right  of  mine  owner  to  draw  ofi 
water  by  percolation. 

Cited  in  3  Farnham,  Waters,  2713,  on  right  to  cut  off  spring  or  stream. 

Distinguished  in  Grand  Junction  Canal  Co.  v.  Shugar,  L.  R.  6  Ch.  483,  24 
L.  T.  N.  S.  402,  19  Week.  Rep.  569,  holding  although  a  landowner  will  not 
in  general  be  restrained  from  drawing  off  the  subterranean  waters  in  the  ad- 
joining land,  yet  he  will  be  restrained  if,  in  so  doing,  he  draws  off  the  water 
flowing  in  a  defined  channel  through  the  adjoining  land;  Atty.-Gen.  v.  Tom- 
line,  L.  R.  14  Ch.  Div.  58,  49  L.  J.  Ch.  N.  S.  377,  42  L.  T.  N.  S.  880,  2S 
Week.  Rep.  870,  44  J.  P.  617,  23  Eng.  Rul.  Cas.  797,  holding  action  will  lie 
in  name  of  attorney  general  to  prevent  owner  of  land  from  removing  natural 
barrier  thrown  up  by  sea  preventing  inundations  of  other  lands. 

The  decision  of  the  Court  of  Exchequer  Chamber  was  distinguished  in  Copper 
King  v.   Wabash  Min.   Co.   114   Fed.  991,  22  Mor.  Min.  Rep.   164,   holding  that 
where  mining  company  has  exclusive  right  to  use  water  of  creek,  another  com- 
pany has  no  right  to  divert  waters  flowing  into  it  by  means   of  shaft. 
Natural  and  prescribable  rights  and  casements. 

Cited  in  State  ex  rel.  Hadley  v.  Standard  Oil  Co.  21S  Mo.  1,  116  S.  W.  902, 
tc  the  point  that  there  is  no  doctrine  of  law  which  compels  person  to  use  his 
property  in  way  that  judges  and  juries  may  consider  reasonable;  Francis  Kerr 
Co.  v.  Seely, '44  Can.  S.  C.  629  (dissenting  opinion),  on  right  of  lateral  sup- 
port in  soil  for  adjoining  buildings;  Bryant  v.  Lefever,  L.  R.  4  C.  P.  Div. 
172,  48  L.  J.  C.  P.  N.  S.  380,  40  L.  T.  N.  S.  579,  27  Week.  Rep.  592,  hold- 
ing the  access  of  air  to  the  chimneys  of  a  building  cannot  as  against  the 
occupier  of  neighboring  land,  be  claimed  either  as  a  natural  right  of  prop- 
erty, or  as  an  easement  by  prescription ;  Harris  v.  De  Pinna,  L.  R.  33  Ch.  Div. 
238,  56  L.  J.  Ch.  N.  S.  344,  54  L.  T.  N.  S.  770,  50  J.  P.  4S6,  on  easements 
in  vague  and  indefiniable  conditions;  Mansell  v.  Valley  Printing  Co.  [1908]  2 
Ch.  441,  1  B.  R.  C.  187,  77  L.  J.'  Oh.  N.  S.  742,  99  L.  T.  N.  S.  464,  24  Times 
L.  R.  802,  52  Sol.  Jo.  660,  holding  that  any  person  who  publishes  pirated 
copy  of  unpublished  picture,  not  registered  under  statute,  is  liable  in  damages 
for  infringement  of  owner's  common-law  right  of  property  in  picture. 

Cited  in  note  in  8  Eng.  Rul.  Cas.  346,  on  right  to  claim  profit  in  land  of 
another   by   custom   or   otherwise. 

Distinguished  in  Dalton  v.  Angus,  L.  R.  6  App.  Cas.  740,  50  L.  J.  Q.  B. 
X.  S.  689,  44  L.  T.  N.  S.  844,  30  Week.  Rep.  196,  46  J.  P.  132,  10  Eng.  Rul. 
Cas.  98,  L.  R.  4  Q.  B.  Div.  162,  L.  R.  3  Q.  B.  Div.  85,  where  an  easement  in 
artificial  conditions  was  claimed;  Bass  v.  Gregory,  L.  R.  25  Q.  B.  Div.  481, 
59  L.  J.  Q,  B.  N.  S.  574,  55  J.  P.  119,  2  Eng.  Rul:  Cas.  562,  holding  an  action- 
able right  existed  in  the  flow  of  air  through  a  defined  channel. 
Natural,  riparian  and  water  rights. 

Cited  in  Sage  v.  New  York,  10  App.  Div.  294,  41  N.  Y.  Supp.  938  (dissenting 
opinion),  as  to  riparian  rights  being  natural  rights;  McDonald  v.  Lake  Simcoe 
Ice   &    Cold   Storage   Co.   29   Ont.    Rep.   247,   holding  the   cutting   of   a   channel 


13.3  NOTES  ON  ENGLISH  RULING  CASKS.        [1   E.   R.  C.  729 

through  ice  formed  on  a  water  lot  in  a  navigable  harbor,  to  enable  ice  cut  out- 
aide  to  be  conveyed  to  the  shore  of  the  harbor,  is  a  use  of  the  water  lot  for 
purposes  of  navigation,  and  owner  of  lot  cannot  interfere  with  such  user; 
Lux  v.  Haggin,  69  Cal.  255,  10  Pac.  674;  Columbia  River  Lumber  Co.  v.  Yull. 
2  B.  C.  237;  Brown  v.  Bathurst  Electric  &  Water  Power  Co.  3  N.  B.  Eq.  543; 
Steadman  v.  Robertson,  18  N.  B.  580;  Hamilton  v.  Gould,  24  U.  C.  Q.  B.  58; 
Holman  v.  Green,  2  Has.  &  War.  (Pr.  Edw.  Ial.)  329;  North  Shore  R.  Co. 
v.  Pion,  15  Quebec  L.  R.  228;  M'Glone  v.  Smith,  Ir.  L.  R.  22  C.  L.  559;  Lyon 
v.  Fishmongers'  Co.  L.  R.  1  App.  Cas.  062,  46  L.  J.  Ch.  X.  S.  68,  35  L.  T. 
N.  S.  569,  25  Week.  Rep.  165,  23  Eng.  Rul.  Cas.  141,—  on  rioht  to  enjoyment 
of  a  water  course  being  a  natural  right  and  not  acquired  by  occupation-.  Esqui 
malt  Waterworks  Co.  v.  Victoria,  C.  R.  [1907]  A.  C.  388  (reversing  12  1'..  C. 
302),  holding  that  rights  of  riparian  owners  at  common  law  were  carried 
into  all  colonies  with  general  body  of  common  law;  Merritt  v.  Toronto,  6  I). 
1  .  R.  152  (dissenting  opinion),  on  rights  of  riparian  owners  on  navigable  river 
as  affected  by  public  rights;  R.  v.  Robertson,  6  Can.  S.  C.  52,  on  rights  in 
surface  streams;  North  Shore  R.  Co.  v.  Pion,  L.  R.  14  App.  Cas.  612,  59  L. 
J.  P.  C.  N.  S.  25,  61  L.  T.  N.  S.  525;  holding  riparian  owner  has  right  to 
have  water  come  to  him  in  natural  state  and  go  from  him  without  obstruction. 

Cited  in  notes  in  19  L.R.A.  93,  94,  on  rights  in  subterranean  waters;  2 
Brit.  Rul.  Cas.  1002,  on  character  of  water  flowing  underground  in  defined  but 
unknown  channel;  10  E.  R.  C.  242,  on  right  of  riparian  owner  to  purity  of 
water;  25  E.  R.  C.  408,  on  rights  of  riparian  proprietor  to  use  or  divert  water 
of    stream. 

The  decision  of  the  Court  of  Exchequer  Chamber  was  cited  in  Dawson  v. 
Murray,  29  U.  C.  Q.  B.  464,  holding  that  right  to  have  flow  of  water,  or  use 
it,  applies  only  to  water  running  in  well  defined  channels,  commonly  called 
watercourses;  Bradford  Corp.  v.  Ferrand,  [1902]  2  Ch.  655,  2  B.  R.  C.  980, 
71  L.  J.  Ch.  N.  S.  859,  51  Week.  Rep.  122,  87  L.  T.  N.  S.  388,  18  Times  L.  R. 
830,  67  J.  P.  21,  holding  that  lower  owner  has  no  right  of  action  for  abstrac- 
tion of  underground  water,  even  though  it  flows  in  well  defined  channel  into 
well  supplying  stream  above  ground. 
Irrigation  rights. 

Cited  in  Canadian  P.  R.  Co.  v.  Parke,  6  B.  C.  6,  holding  right  to  use  water  for 
irrigation   statutory  one. 

Cited  in   3  Farnham,   Waters,   1896,   on  necessity  of   irrigation. 

Ancient  lights. 

Cited  in  Gilmore  V.  Driscoll,  122  Mass.  199,  23  Am.  Hep.  312,  as  to  the 
English   doctrine. 

Presumption  of  grant. 

Cited  in  Lehigh  Valley  R.  Co.  v.  McFarlan,  43  X.  J.  L.  605,  as  to  when 
and  how  rebutted;  Ring  v.  Pugsley,  18  N.  B.  303,  holding  presumption  of  grant 
raised  entirely  from  fact  of  uninterrupted  possession  of  twenty  years;  Sturges 
v.  Bridgman,  L.  R.  11  Ch.  Div.  852,  48  L.  J.  Ch.  X.  S.  785,  41  L.  T.  X.  S. 
219,  28  Week.  Rep.  200;  Lawrie  v.  Silsby,  76*  Vt.  240,  104  Am.  St.  Rep.  927, 
56  Atl.  1106, — holding  presumption  of  a  grant  from  long  continued  enjoyment 
arises  only  where  the  person  against  whom  the  right  is  claimed  could  have 
lawfully  interrupted  or  prevented  the  exercise  of  the  supposed  right. 

The  decision  of  the  Court  of  Exchequer  Chamber  was  cited  in  Harrison  v. 
Harrison,  16  N.  S.  338,  holding  that  as  to  water  not  flowing  in  defined  channels 
over  another's  land,  such  flowing  does  not  warrant  presumption  of  grant. 


1  E.  R.  C.  729]        NOTES  ON  ENGLISH  RULING  CASES.  136 

Injuries  actionable  because  of  motive. 

Cited  in  Rader  v.  Davis,  154  Iowa,  306,  38  L.R.A.  (N.S.)  131,  134  N.  W.  849, 
to  the  point  that  act  otherwise  lawful  is  not  unlawful  because  of  malicious 
intent;  Burke  v.  Smith,  69  Mich.  380,  8  L.R.A.  184,  37  N.  W.  838,  on  acts 
made  actionable  by  bad  motive;  Barger  v.  Barringer,  151  N.  C.  433,  25  L.R.A. 
(N.S.)  831,  66  S.  E.  439,  19  Ann.  Cas.  472  (dissenting  opinion),  on  malice 
as  giving  rise  to  cause  of  action  for  act  which  would  otherwise  not  be  basis 
for  cause  of  action;  Letts  v.  Kessler,  54  Ohio  St.  73,  40  L.R.A.  177,  42  N.  E. 
765,  holding  a  spite  fence  was  damnum  absque  injuria;  Nagy  v.  Manitoba  Free 
Press  Oo.  16  Manitoba  L.  Rep.  619;  Hague  v.  Wheeler,  157  Pa.  324,  22  L.R.A.  141, 
37  Am.  St.  Rep.  736,  27  Atl.  714, — as  to  one  not  having  the  right  to  do  malicious- 
ly what  he  might  do  if  his  motives  were  good. 

Cited  in  Thornton  Oil  &  Gas  Co.  48,  on  maliciously  boring  oil  or  gas  well  to 
injure  another. 
Torts  and  breach  of  contracts. 

Cited  in  Mogul  S.  S.  Co.  v.  McGregor,  L.  R.  23  Q.  B.  Div.  598,  58  L.  J.  Q. 
B.  N.  S.  465,  61  L.  T.  N.  S.  820,  37  Week.  Rep.  756,  53  J.  P.  709,  6  Asp.  Mar.  L. 
Cas.  455,  as  to  the  distinction. 

1  E.  R.  C.  765,  SUTTON  v.  JOHNSTONE,  1  Bro.  P.  C.  76,  1  Revised  Rep.  269, 
1  T.  R.  784,  affirming  the  decision  of  the  Exchequer  Chamber,  reported  in   1 
T.  R.  510,  which  reversed  the  decision  of  the  Court  of  Exchequer,  reported  in 
1  T.  R.  493,  1  Revised  Rep.  2.57. 
Malicious  prosecution. 

Cited  in  Castro  v.  DeUriarte,  12  Fed.  250,  2  N.  Y.  Civ.  Proc.  Rep.  (McCarty) 
199,  holding  that  malicious  prosecution  will  lie  against  one  who  maliciously  and 
without  probable  cause,  set  on  foot,  legal  proceedings,  although  such  proceedings 
were  invalid;  Johnson  v.  Gordwood,  7  Misc.  651,  28  N.  Y.  Supp.  151,  holding  that 
action  for  malicious  prosecution  can  be  brought  only  for  prosecution  which  is 
manifestly  legal  on  its  face;  Bartlett  v.  Brown,  ~6  R.  I.  37,  75  Am.  Dec.  675; 
Plummer  v.  Gheen,  10  N.  C.  (3  Hawks)  66, — holding  that  if  man  prosecute  an- 
other from  apparent  guilt,  arising  from  circumstances,  which  he  honestly  believes, 
he  is  not  liable  in  action  for  malicious  prosecution;  Miller  v.  Grice,  1  Rich.  L. 
147,  on  the  liability  of  magistrate  for  issuing  a  warrant  and  an  arrest  maliciously 
and  without  having  jurisdiction;  Rex  v.  Stewart,  6  Manitoba  L.  Rep.  257,  hold- 
ing that  action  for  malicious  prosecution  may  arise  although  no  criminal  charge 
had  been  sufficiently  alleged  in  information;  Young  v.  Nichol,  9  Ont.  Rep.  347, 
holding  that  action  for  malicious  prosecution  will  lie  for  issuing  search  warrant 
without  probable  cause;  Bump  v.  Betts,  19  Wend.  421,  holding  action  lies  against 
any  person  who  maliciously,  and  without  probable  cause,  prosecutes  another, 
whereby  the  party  prosecuted  sustains  an  injury  either  in  person,  property,  or 
reputation;  Macdonald  v.  Henwood,  32  U.  C.  C.  P.  433,  as  to  the  definition  of 
malicious  "prosecution"  for  crime. 
—  Distinction  from  false  imprisonment. 

Cited  in  Davis  v.  Pacific  Teleph.  &  Teleg.  Co.  127  Cal.  312,  57  Pac.  764,  holding 
that  where  gist  of  action  is  for  malicious  prosecution  for  misdemeanor  and 
arrest  therefor  under  legal  process,  there  can  be  no  recovery  for  false  imprison- 
ment, which  must  proceed  upon  allegation  of  arrest  without  legal  authority;  Col- 
ter v.  Lower,  35  Ind.  285,  9  Am.  Rep.  735,  holding  that  if  imprisonment  is  under 
legal  process,  but  action  is  carried  on  maliciously  and  without  probable  cause,  it  is 
malicious  prosecution;  Boaz  v.  Tate,  43  Ind.  60,  holding  that  if  imprisonment  be 


137  NOTES  ON  ENGLISH  RULING  CASKS.        [1   E.  I;.  C.  765 

under  legal  process,  but  action  has  been  commenced  maliciously  and  without 
probable  cause,  it  is  malicious  prosecution;  Southern  R.  Co.  v.  Shirley,  121  Ky. 
863,  90  S.  W.  597,  12  Ann.  Cas.  33,  holding  that  in  action  for  false  imprisonment, 
it  is  not  necessary  to  allege  that  arrest  was  without  probable  cause;  Lark  v. 
Bande,  4  Mo.  App.  186,  holding  that  person  making  statement  to  officer  tending  to 
show  that  another  had  committed  felony  is  not  liable  for  malicious  arrest,  if  he 
did  not  request  arrest  to  be  made,  although  no  felony  was  committed;  dissenting 
opinions  in  Wolcott  v.  Bachman,  3  YVyo.  335,  23  Pac.  673:  Henderson  v.  Jackson. 
9  Abb.  Pr.  N.  S.  293,  2  Sweeney,  324,  40  How.  Pr.  168,— on  distinction  between  ac- 
tion for  false  imprisonment  and  action  for  malicious  prosecution?  Hobbs  v.  Kay. 
18  R.  I.  84,  25  Atl.  694,  holding  that  trespass  for  false  imprisonment  does  not  lie 
where  made  under  lawful  process,  although  wrongfully  obtained;  Neil  v.  Thorn, 
88  N.  Y.  270,  as  to  whether  evidence  to  sustain  false  imprisonment  would  sustain 
an  action  for  malicious  prosecution. 

—  Favorable  termination  of  prosecution. 

Cited  in  Barrell  v.  Simonton,  2  Cranch,  C.  C.  657,  Fed.  Cas.  No.  1,041,  holding 
the  alleged  malicious  prosecution  must  have  terminated  in  favor  of  plaintiff  in  the 
action  for  malicious  prosecution. 

—  Absence  of  probable  cause. 

Cited  in  Dinsman  v.  Wilkes,  12  How.  390,  13  L.  ed.  1036,  to  the  point  that 
action  for  malicious  prosecution  will  lie  only  in  cases  where  legal  prosecution  has 
been  carried  on  without  probable  cause;  Vinson  v.  Flynn,  64  Ark.  453,  39  L.R.A. 
415,  43  S.  W.  146,  holding  that  want  of  probable  cause  is  necessary  to  cause  of 
action  for  malicious  prosecution;  Greenwade  v.  Mills,  31  Miss.  464,  holding  that 
want  of  probable  cause  alone  is  not  sufficient  to  maintain  action  for  malicious 
prosecution, — malice  must  also  be  shown;  Furness  v.  Porter,  Walk.  (Miss.)  442, 
holding  that  where  facts  have  not  feen  found  by  jury,  it  is  error  to  instruct  jury 
"that  admitting  all  testimony  in  favor  of  plaintiff  to  be  true,  yet  that  he  had  not 
shown  want  of  probable  cause;"  Hill  v.  Palm,  38  Mo.  13,  holding  that  in  malicious 
prosecution,  it  is  not  competent,  in  defense  of  probable  cause,  to  show  that  party 
was  guilty  of  another  and  different  offense;  Warren  v.  Flood,  72  Mo.  App.  199, 
holding  that  complaining  party  is  not  liable  where  he  fairly  and  fully  states 
facts  to  officer  who  sets  on  foot  prosecution;  Bulkeley  v.  Smith,  2  Duer,  261,  hold- 
ing that  in  malicious  prosecution  action,  want  of  probable  cause  is  essential 
ground,  and  must  be  expressly  proved;  Dorendinger  v.  Tschechtelin,  12  Daly,  34, 
holding  that  charge  made  must  be  shown  to  be  wilfully  false  to  establish  want  of 
probable  cause,  in  action  for  malicious  prosecution;  M'Cormick  v.  Sisson,  7  Cow. 
715,  holding  that  whether  there  is  probable  cause  is  mixed  question  of  law 
and  fact;  Baldwin  v.  Weed,  17  Wend.  224,  holding  that  in  action  for  malicious 
prosecution  for  procuring  indictment  for  obtaining  goods  under  false  pretences, 
evidence  that  plaintiff  had  been  guilty  of  conduct  which  to  men  unskilled  in 
technical  rules  of  law,  would  excite  well  grounded  suspicion  that  crime  had  been 
committed,  was  sufficient  to  show  probable  cause;  McHugh  v.  Pundt,  1  Bail.  L. 
441 ;  Boyd  v.  Snyder,  207  Pa.  330,  56  Atl.  924 ;  Apgar  v.  Woolston,  43  N.  J.  L.  57, 
—holding  that  if  court  had  jurisdiction  and  process  was  regular,  only  action  sus- 
tainable is  for  malicious  motive  and  want  of  probable  cause  in  promoting  prose- 
cution; Watt  v.  Greenlee,  9  N.  C.  (2  Hawks),  186,  holding  that  essential 
ground  of  action  for  malicious  prosecution  is,  that  legal  prosecution  was  carried 
on  without  probable  cause,  which  must  be  expressly  proved;  Barron  v.  Mason,  31 
Vt.  189,  holding  that  in  action  for  malicious  prosecution,  both  want  of  probable 
cause  and  malice  must  concur,  to  render  prosecutor  liable:    Grant  v.  Beaudry,  2 


1   E.  R.  C.  765]        NOTES  OX  ENGLISH  RULING  CASES.  138 

Dorin  (Quebec)  197,  holding  that  malice  and  want  of  probable  cause  must  Lie 
combined  to  render  mayor  liable  for  arrest  and  prosecution  of  member  of  illegal 
society  threatening  breach  of  peace;  Wilson  v.  Tennant,  25  Ont.  Rep.  339,  holding 
that  in  action  for  malicious  prosecution  of  charge  of  theft  of  several  articles,  court 
properly  directed  that  no  probable  cause  existed  for  charge  as  to  some  of  articles, 
and  that  fact  that  probable  cause  to  charge  theft  of  some  of  articles  bore  only  on 
question  of  damages;  Brown  v.  Hawkes  [1891]  2  Q.  B.  718,  61  L.  J.  Q.  B.  N.  S. 
151,  65  L.  T.  N.  S.  108,  55  J.  P.  823,  as  to  necessity  of  existence  of  probable 
cause. 

—  Judgment  as  evidence  of  probable  cause. 

Cited  in  Evving  v.  Sanford,  19  Ala.  605,  holding  that  order  of  commitment  by 
justice  is  sufficient  evidence  of  probable  cause,  but  is  not  conclusive  upon  plain- 
tiff in  malicious  prosecution;  McElroy  v.  Catholic  Press.  Co.  254  111.  290,  98  N. 
E.  527,  holding  that  judgment  of  conviction  is  prima  facie  evidence  of  existence  of 
probable  cause  for  prosecution,  even  though  judgment  was  reversed;  Welch  v.  Bos- 
ton &  P.  R.  Corp.  14  R.  I.  609,  holding  that,  in  absence  of  fraud,  judicial  rinding 
in  former  action  is  conclusive  of  probable  cause,  even  if  such  finding  is  reversed 
on  appeal;  Womack  v.  Circle,  29  Gratt.  192,  holding  that  judgment  of  justice, 
though  reversed,  was  prima  facie  evidence  of  probable  cause  in  malicious  prosecu- 
tion action;  Womack  v.  Circle,  32  Gratt.  324.  holding  that  in  malicious  prosecu- 
tion, judgment  of  justice  requiring  security  for  good  behavior,  though  reversed,  is 
conclusive  evidence  of  probable  cause,  unless  complainant  knew  evidence  before 
justice  was  false;  Ewing  v.  Sanford,  19  Ala.  605,  holding  judgment  of  justice  or- 
dering commitment  sufficient  evidence  of  probable  cause  but  not  conclusive;  Burt 
v.  Place,  4  Wend.  591,  holding  recovery  in  a  court  of  competent  jurisdiction  in 
favor  of  plaintiff  in  a  suit  complained  of  as  malicious,  is  not  conclusive  evidence 
of  probable  cause;  Miller  v.  Deere,  2  Abb.  Pr.  1,  holding  that  in  an  action  for  ma- 
licious prosecution,  the  fact  that  the  jury  convicted  the  plaintiff  in  the  prosecution 
is  conclusive  evidence  of  probable  cause  unless  the  conviction  was  fraudulently 
procured;  Griffis  v.  Sellars,  19  N.  C.  (2  Dev.  &  B.  L.)'  492,  31  Am.  Dec.  422; 
Macdonald  v.  Schroeder,  28  Pa.  Super.  Ct.  128;  Short  v.  Spragins,  104  Ga.  628,  30 
S.  E.  810, — holding  judgment  of  lower  court  convicting  plaintiff,  if  not  procured 
by  fraud  or  false  testimony  is,  though  afterwards  set  aside,  conclusive  evidence  of 
probable  cause;  Crescent  City  L.  S.  L.  &  S.  H.  Co.  v.  Butchers'  Union,  S.  H.  &  L. 
S.  L.  Co.  120  U.  S.  141,  30  L.  ed.  614,  7  Sup.  Ct.  Rep.  472,  on  same  point;  Her- 
man v.  Brookerhoff,  8  Watts,  240,  holding  in  an  action  for  maliciously  suing  out 
a  capias  ad  respondendum  the  plaintiff  is  estopped  from  denying  the  existence 
of  a  probable  cause  of  action,  by  the  fact  that  a  judgment  was  rendered  against 
him  in  the  suit  in  which  he  was  arrested. 

Distinguished  in  Routhier  v.  McLaurin,  18  Ont.  Rep.  112,  holding  where  a  man 
has  been  prosecuted  for  an  assault  and  brings  an  action  for  malicious  prosecution, 
the  rinding  that  there  was  in  fact  an  assault  is  not  decisive  of  the  question  whether 
there  was  reasonable  and  probable  grounds  for  the  prosecution;  Peck  v.  Peck,  35 
N.  B.  484,  holding  it  is  no  answer  to  an  action  for  malicious  prosecution  that  the 
conviction  against  the  plaintiff  was  quashed  by  reason  of  a  proviso  in  the  statute 
creating  the  offense  excusing  the  act  charged. 
— Inferences  as  to  malice  and  want  of  probable  cause. 

Cited  in  Brown  v.  Selfridge.  224  U.  S.  189,  56  L.  ed.  728,  32  Sup.  Ct.  Rep.  444, 
holding  that  burden  of  proving  malice  and  want  of  probable  cause  rests  upon 
plaintiff  in  action  for  malicious  prosecution:  Ball  v.  Rawles,  93  Cal.  222,  27  Am. 
St.  Rep.  174,  28  Pac.  9.!7.  holding  in  order  to  recover  plaintiff  must  establish  both 


139  NOTES  ON  ENGLISH  RULING  CASES.        U    B.   R.   C.  70.", 

malice  and  want  of  probable  cause;  Stone  v.  Crocker,  24  Pick.  81 ;  Wilder  v.  Holdon, 
24  Pick.  8, — holding  that  in  action  for  malicious  prosecution  plaintiff  must  prove 
malice  and  want  of  probable  cause;  Southern  R.  Co.  v.  Mosby,  112  \  a.  L69,  70  S. 
E.  517,  holding  that  in  malicious  prosecution  malice  may  be  implied  from  want  of 
probable  cause  if  circumstances  will  warrant  implication,  but  existence  of  malice 
may  be  repelled  by  circumstances;  McNellis  v.  Gartshore,  2  U.  C.  C.  P.  464.  hold- 
ing that  where  complaint  does  not  authorize  justice  of  peace  to  issue  search  war- 
rant, it  must  be  proved  that  complainant  acted  maliciously  and  without  probable 
cause:  Barbour  v.  Gettings,  26  U.  C.  Q.  B.  544,  holding  that  allegation  of  want 
of  probable  cause  must  be  proved  and  cannot  be  implied;  Montreal  v.  Hall,  12  Can. 
S.  C.  74,  to  point  that  malice  is  implied  from  want  of  probable  cause. 

Cited  in  note  in  3D  L.  ed.  U.  S.  483,  on  inferences  in  actions  for  malicious  prose- 
cution. 

The  decisions  of  the  Exchequer  Chamber  was  cited  with  special  approval  in 
Barron  v.   Mason,   31   Vt.   189,   on   necessity  of   co-existence   of   both. 

The  decisions  of  the  Exchequer  Chamber  was  cited  in  Center  v.  Spring,  2 
Iowa,  393;  Adams  v.  Lisher,  3  Blackf.  241,  25  Am.  Dec.  102;  Thaule  v.  Krekeler, 
81  N.  Y.  428;  Kirtley  v.  Deck,  2  Munf.  10,  5  Am.  Dec.  445;  Blunt  v.  Little, 
:;  Mason,  102,  Fed.  Cas.  No.  1,578;  Castro  v.  DeUriarte,  16  Fed.  93;  Stewart 
v.  Sonneborn,  98  U.  S.  187,  25  L.  ed.  116;  Grimes  v.  Miller,  23  Ont.  App.  Rep. 
764;  St.  Denis  v.  Shoultz,  25  Ont.  App.  Rep.  131;  Heyne  v.  Blair,  62  N.  Y. 
19,— as  to  proof  of  malice  not  supplying  proof  of  want  of  probable  cause: 
Spengler  v.  Davy,  15  Gratt,  381,  holding  the  improper  motive,  or  want  of 
proper  motive,  inferable  from  a  wrongful  act  based  upon  no  reasonable  ground, 
constitutes  of  itself  all  the  malice  deemed  essential  in  law  to  the  maintenance 
of  the  action  for  malicious  prosecution;  Crawford  v.  McLaren,  9  U.  C.  C.  P.  215, 
holding  malice  may  be  inferred  from  want  of  probable  cause,  but  proof  of  express 
malice  is  not  evidence  of  want  of  probable  cause. 
—  Court  and  jury  questions. 

Cited  in  Wheeler  v.  Nesbitt,  24  How.  544,  16  L.  ed.  765,  holding  that  want  of 
probable  cause  is  evidence  of  malice  for  consideration  of  jury;  but  converse  of 
proposition  cannot  be  sustained;  Lewton  v.  Hower,  35  Fla.  5S,  16  So.  616;  Mil- 
ler v.  Brown,  3  Mo.  131,  23  Am.  Dec.  693,  holding  that  probable  cause  is  mixed 
question  of  law  and  fact;  Brown  v.  Connelly,  5  Blackf.  390;  Pennsylvania  Co. 
v.  Weddle.  100  Ind.  138,  holding  that  in  action  for  malicious  prosecution,  if 
facts  are  not  disputed,  court  must  decide  as  matter  of  law,  whether  they  consti- 
tute probable  cause;  Bulkeley  v.  Keteltas,  6  N.  Y.  3S4;  Duffy  v.  Beirne,  30  App. 
Div.  384,  51  N.  Y.  Supp.  626;  Masten  v.  Deyo,  2  Wend.  424;  Burns  v.  Erben, 
40  N.  Y.  463, — holding  that  where  there  is  no  conflict  in  evidence,  question 
of  probable  cause  as  reasonable  grounds  of  suspicion  is  one  of  law ;  Legget  v. 
Blount,  4  N.  C.  (Term.  Rep.  123)  7  Am.  Dec.  702;  Bradley  v.  Morris,  44  N.  C. 
(Busbee,  L.)  395;  Beale  v.  Roberson,  29  N.  C.  (7  Ired.  L.)  280,— holding  that 
in  action  for  malicious  prosecution  jury  should  find  as  to  facts  relating  to 
probable  cause  but  court  should  determine  their  sufficiency  as  matter  of  law ; 
Wilkerson  v.  Wilkerson,  159  N.  C.  265,  39  L.R.A.(N.S.)  1215,  74  S.  E.  740, 
holding  that  in  malicious  prosecution  action  it  is  the  duty  of  court  to  point  out 
to  jury  what  facts  which  evidence  tends  to  support  would,  if  found  to  exist, 
constitute  probable  cause;  French  v.  Smith,  4  Vt.  363,  24  Am.  Dec.  616,  holding 
that  it  is  for  court  to  determine  whether  facts  found  constitute  probable  cause 
in  action  for  malicious  prosecution;  Riddell  v.  Brown,  24  U.  C.  Q.  B.  90.  holding 


1  E.  R.  C.  765]        NOTES  ON  ENGLISH  RULING  CASES.  140 

that   whether    circumstances   alleged   to   show    want    of   probable    cause    existed 
is  question  of  fact  and  whether  they  show  it  is  question  of  law. 

The  decision  of  the  Exchequer  Chamber  was  referred  to  as  leading  case  in 
Panton  v.  Williams,  2  Q.  B.  169;  1  Gale  &  D.  504,  10  L.  J.  Exch.  N.  S.  545; 
Thelin  v.  Dorsey,  59  Md.  539,  on  question  being  a  mixed  one. 

The  decision  of  the  Exchequer  Chamber  was  cited  in  Ulmer  v.  Leland,  1  Me. 
135,  10  Am.  Dec.  48;  Vinal  v.  Core,  IS  W.  Va.  1;  McDonald  v.  Atlantic  & 
P.  R.  Co.  3  Ariz.  96,  21  Pac.  338, — holding  question  of  probable  cause  a  mixed 
one  of  law  and  fact;  People  v.  Kilvington,  104  Cal.  86,  43  Am.  St. 
Rep.  73,  37  Pac.  799,  as  to  question  of  probable  cause  being  mixed  is 
one  of  law  and  fact;  Atchison,  F.  &  S.  F.  R.  Co.  v.  Watson,  37  Kan. 
773,  15  Pac.  877,  holding  that  in  action  for  malicious  prosecution,  if  facts 
are  not  disputed,  court  must  decide  as  matter  of  law,  whether  they  constitute 
probable  cause;  Burton  v.  St.  Paul,  M.  &  M.  R.  Co.  33  Minn.  189,  22  N.  W.  300, 
holding  what  facts  and  whether  particular  facts  constitute  probable  cause  is  a 
question  exclusively  for  the  court;  what  facts  exist  in  a  particular  case,  where 
there  is  a  dispute  in  reference  to  them,  is  a  question  exclusively  for  the  jury; 
Haw  ley  v.  Butler,  54  Barb.  490,  holding  the  question  whether  the  defendants  had 
probable  cause  for  the  arrest  upon  undisputed  facts  was  a  question  for  the  court; 
Lister  v.  Perryman,  L.  R.  4  H.  L.  521,  39  L.  J.  Exch.  N.  S.  177,  23  L.  T.  N.  S.  269, 
19  Week.  Rep.  9,  L.  R.  3  Exch.  197,  holding  jury  must  find  the  facts  on  which 
the  question  of  reasonable  and  probable  cause  depends  but  the  judge  must  then 
determine  whether  the  facts  found  do  constitute  reasonable  and  probable  cause. 
Pleading  malicious  prosecution. 

Cited  in  Gibson  v.  Waterhouse,  4  Me.  226,  holding  that  in  action  for  malicious 
prosecution,  want  of  probable  cause  is  material  allegation;  Davis  v.  Clough,  8 
N  .  H.  157,  holding  that  declaration  in  action  for  maliciously  commencing  suit 
where  nothing  was  due  should  allege  that  fact,  or  in  some  terms  show  want  of 
probable  cause,  and  that  suit  was  terminated;  Thornton  V.  Corbin,  3  Call  (Va.) 
384,  holding  that  in  action  for  malicious  prosecution,  declaration  must  aver 
want  of  probable  cause;  Adams  v.  Lisher,  3  Blackf.  241,  25  Am.  Dec.  102,  on 
the  lesser  certainty  required  in  pleading  the  prosecution  for  a  misdemeanor. 
Immunity  of  military  and  governmental  acts. 

Cited  in  Dawkins  v.  Paulet,  L.  R.  5  Q.  B.  94,  39  L.  J.  Q.  B.  N.  S.  53,  9  Best 
&  S.  768,  21  L.  T.  N.  S.  584,  18  Week.  Rep.  336,  holding  military  reports  li- 
belous of  an  officer  were  not  actionable;  Sullivan  v.  Spencer,  Ir.  Rep.  6  C.  L. 
173,  holding  an  action  is  not  maintainable  in  any  Irish  Court  against  the  Lord 
Lieutenant  during  his  term  of  office  for  any  act  done  by  him  in  his  politic 
capacity. 
Civil  liability  of  public  officers. 

Cited  in  Duckworth  v.  Johnston,  7  Ala.  578,  holding  that  officer  who  executed 
warrant  as  well  as  person  who  caused  it  to  be  issued  by  justice  of  peace,  is 
liable  where  complaint  does  not  state  crime;  Grant  v.  Deuel,  3  Rob.  (La.)  17, 
38  Am.  Dec.  228,  holding  that  prosecutor  shall  be  protected,  though  his  private 
motives  may  have  been  malicious,  provided  he  had  probable  cause  for  charge; 
Maulsby  v.  Reifsnider,  69  Md.  143,  14  Atl.  505,  holding  that  privilege  of  counsel 
exempting  him  from  actions  of  slander  for  defamatory  words  spoken  in  pro- 
fessional capacity  in  trial  of  cause,  is  absolute  and  unqualified;  Com.  v.  Dan- 
dridge,  2  Va.  Cas.  408,  to  the  point  that  judge,  acting  within  jurisdiction,  shall 
not  be  called  to  answer  for  his  judgment,  except  by  impeachment;  Simard  v. 
Jenkins,  Montreal  Cond.  Rep.    (Ramsay  &  M.)    46,  holding  that  jurors  are  not 


141  NOTES  ON  ENGLISH  RULING  CASES.        U  E.  R.  G.  70:» 

liable  to  an  action  of  libel,  because  in  their  verdict  they  directed  attention  to 
evidence  of  a  certain  witness  as  indicating  perjury;  Somcrall  v.  Gibbes,  40  M'Cord, 
L.  313,  holding  a  master  in  equity  is  liable  at  law,  to  an  action  on  the  case,  for 
a  neglect  of  duty,  as  an  officer  of  that  court,  by  any  one  who  may  be  injured  by 
such  neglect;  Evans  v.  Foster,  1  N.  H.  374,  holding  action  does  not  lie  against 
a  judicial  officer  for  demanding  excessive  bail;  McKim  v.  Odom,  3  Bland,  Ch. 
407;  Baird  v.  Walker,  Newfoundl.  Rep.  (1884-96)  490;  Kearney  v.  Oakes,  20 
N.  S.  30,  (dissenting  opinion);  Baker  v.  Ranney,  12  Grant,  Ch.  (U.  C.)  228,— 
as  to  officer's  civil  liability;  Noble  v.  Richmond,  31  Gratt.  271,  31  Am.  Rep. 
726;  Weet  v.  Brockport,  16  N.  Y.  161, — on  actionable  breach  of  public  duty. 
Dunham  v.  Powers,  42  Vt.  1,  holding  a  petit  juror,  while  acting  in  discharge  of 
his  duty  as  part  of  the  court,  is  exempt  from  responsibility  by  civil  action  for 
what  he  says  in  the  jury  room  concerning  the  cause;  Kendall  v.  Stokes,  3  How. 
7S9,  11  L.  ed.  824,  (dissenting  opinion),  as  to  liability  for  failure  to  perform 
duty;  Brown  v.  United  States,  6  Ct.  CI.  171,  as  to  liability  of  officer  of  state 
for  tortious  act  done  by  authority  of  state;  Sumner  v.  Chandler,  IS  N.  B.  17">. 
as  to  contract  liability  of  public  officers;  Milner  v.  Brydges,  18  N.  B.  113,  holding 
servant  of  the  Crown  responsible  for  tortious  act  although  done  with  authority 
of  the  Crown. 

Military  and  naval  persons. 

Cited  in  Maurice  v.  Worden,  54  Md.  233,  39  Am.  Rep.  384,  to  the  point  that 
action  for  malicious  prosecution  would  not  lie  by  naval  commander  against 
commander  in  chief  of  naval  squadron;  Tyler  v.  Pomeroy,  8  Allen,  480,  holding 
that  no  acts  of  military  officers  or  tribunals,  can  be  revised  or  punished,  civilly  or 
criminally,  by  common  law  courts;  People  ex  rel.  Smith  v.  Roe,  51  App.  Div.  494, 
64  N.  Y.  Supp.  642,  holding  that  mandamus  will  not  lie  to  compel  commanding 
officer  of  state  militia,  who  relieved  officer  of  his  command  with  approval  of 
governor,  to  reinstate  officer;  Dennis  v.  Larkin,  19  Iowa,  434,  holding  person 
drafted  into  army  not  liable  to  alternate  who  was  obliged  to  serve  by  reason 
of  former  absconding;  Lampert  v.  Laclede  Gaslight  Co.  14  Mo.  App.  376,  as  to 
nonliability  of  military  officers;  Luther  v.  Borden,  7  How.  1,  12  L.  ed.  581, 
(dissenting  opinion),  as  to  liability  of  officers  for  injuries  to  soldiers;  Grant 
v.  Secretary  of  State,  L.  R.  2  O.  P.  Div.  445,  46  L.  J.  C.  P.  N.  S.  681,  37  L.  T. 
N.  S.  188,  25  Week.  Rep.  848,  8  Eng.  Rul.  Cas.  246,  holding  secretary  of  state 
not  liable  for  publication  of  an  act  done  in  respect  to  a  military  officer  in  pur- 
suance of  government  orders  and  regulations  applying  to  military  service. 

Questioned  in  Wilson  v.  Mackenzie,  7  Hill,  95,  42  Am.  Dec.  51,  holding  trespass 
may  be  maintained  against  an  officer  of  the  navy  for  illegally  assaulting  and 
imprisoning  one   of  his   subordinates,  though   the  act   was  done  upon  the  high 
seas,  and  under  color  of  naval  discipline. 
—  Remedy,  form  of  action. 

Cited  in  Rogers  v.  Brewster,  5  Johns.  125,  on  case  as  remedy  for  official  op- 
pression. 
Presumption  of  officer  doing-  his  duty. 

Cited  in  Raymond  v.  Bell,  18  Conn.  81;  Alliance  v.  Joyce,  49  Ohio  St.  7,  30 
N.  E.  270;  Rowan  v.  Lamb,  4  G.  Greene,  468,  holding  he  is  presumed  to  have 
done  his  duty. 

Right  of  civil  tribunals  to  interfere  with  military  discipline. 

Cited  in  Tyler  v.  Pomeroy,  8  Allen,  480,  as  to  the  right. 


1  E.  R.  C.  765]        NOTES  ON  ENGLISH  RULING  CASES.  142 

Courts  martial. 

Cited  in  Luther  v.  Borden,  7  How.  1,  12  L.  ed.  581    (dissenting  opinion),  on 
extent   of   operation   of   martial   law   as  to   persons   against   whom   no   probable 
cause  exists  which   may   justify   its   operation;    United   States  v.   Mackenzie,    1 
N.  Y.  Leg.  Obs.  371,  Fed.  Cas.  No.  18,313,  as  to  their  jurisdiction. 
"31aliciously." 

Cited  in  Adams  v.  Mills,  3  How.  Pr.  219,  as  to  it  importing  that  words  were 
spoken  falsely. 
Pleading  torts. 

Cited  in  Webster  v.  Holmes,  62  N.  J.  L.  55,  40  Atl.  778,  holding  some  form 
of  averment  of  falsity  of  defamatory  words  is  indispensable. 
Coexistence  of  remedy  and  wrong. 

Cited  in  Reynolds  v.  ^Etna  L.  Ins.  Co.  28  App.  Div.  591,  51  N.  Y.  Supp.  446; 
Hall  v.  Sugo,  27  Misc.  1,  57  N.  Y.  Supp.  920, — to  the  point  that  there  can  be 
no  wrong  without  remedy;  State  ex  rel.  Silver  v.  Kendall,  15  Neb.  262,  18  N.  W. 
85  (dissenting  opinion),  on  existence  of  remedy,  at  common  law,  in  all  cases 
where  right  exists;  Newton  v.  Porter,  5  Lans.  416,  to  the  point  that  law  of  equi- 
ty will  allow  no  wrong  to  be  without  remedy. 

Cited  in  1  Cooley  Torts  3d  ed.  23,  on  wrong  being  without  a  remedy. 

Privilege  of  counsel. 

Cited  in  note  in  7  E.  R.  C.  727,  on  nonliability  of  advocate  for  defamatory 
words  used   in  judicial  proceeding,  though   uttered  maliciously. 

1  E.  R.  C.  789,  KENNEDY  v.  BROUN,  13  C.  B.  N.  S.  677,  9  Jur.  N.  S.  119,  7 
L.  T.  N.  S.  626,  11  Week.  Rep.  284,  32  L.  J.  C.  P.  N.  S.  137. 

Attorney  and  client. 

Argument   of   counsel    cited    in    Ricker's    Petition,    66    N.    H.    207,    24    L.R.A. 
740,  29  Atl.  559,  on  common  law  meaning  of  "lawyer." 
—  Compensation  and  recovery  thereof. 

Cited  in  Regina  v.  Ellis,  32  N.  B.  713,  holding  counsel  fees  cannot  be  includ- 
ed in  costs;  Hope  v.  Caldwell,  21  U.  C.  C.  P.  241,  holding  a  security  taken 
from  a  client  by  an  attorney  or  counsel  for  costs  to  accrue  in  respect  of  serv- 
ices* to  be  rendered  to  the  client,  is  invalid  and  cannot  be  enforced;  Leslie  v. 
Ball,  22  U.  C.  Q.  B.  512,  as  to  right  of  counsel  to  recover  fees  and  their  exemp- 
tion from  liability;  Re  Richardson,  3  Ch.  Cbamb.  Rep.  (Ont.)  144,  to  the  point 
that  in  case  of  barristers  where  there  is  express  contract  to  pay  for  services, 
there  is  legal  title  to  remuneration;  Re  Le  Brasseur  [1896]  2  Ch.  487,  65  L. 
J.  Ch.  N.  S.  763,  74  L.  T.  N.  S.  717,  45  Week.  Rep.  87,  holding  court  will  not 
assist  counsel  to  recover  his  fees;  McLeod  v.  Vaughan,  31  N.  B.  1364;  Miller 
v.  McCarthy,  27  U.  C.  C.  P.  147;  Re  North  Victoria  Election,  39  U.  C.  Q.  B. 
147, — holding  counsel  can  maintain  no  action  for  his  fees;  R.  v.  Doutre,  6  Can. 
S.  C.  389,  342,  on  right  of  barrister  to  action  for  fees. 

Cited  in  note  in  7  E.  R.  C.  727,  on  recovery  of  fees  by  barrister  by  action. 

Cited  in  Hollingsworth  Contr.  17,  on  right  of  physician  or  barrister  to  sue 
for  services  rendered  on  request;  Reinhard  Ag.  239,  443,  on  compensation  of 
barrister  or  counsellor   as  dependent  on   client's  generosity. 

Distinguished  in  R.  v.  Doutre,  L.  R.  9  App.  Cas.  745,  53  L.  J.  C.  P.  N.  S.  84, 
51  L.  T.  N.  S.  669,  holding  according  to  law  of  Quebec  a  member  of  the  Bar  is 
entitled,  in  the  absence  of  special  stipulation,  to  sue  for  and  recover  on  a 
quantum   meruit   in   respect   to   professional   services   rendered   by   him:    Schomp 


143  NOTES  ON  ENGLISH  RULING  CASES.        [1   E.  R.  C.  802 

v.  Schenck,  40  N.  J.  L.  195,  29  Am.  Rep.  219,  holding  a  contract  of  an  attorney 
at  law  for  a  certain  remuneration  for  his  services  is  legal  and  can  be  enforced 
by  suit,  such  officer  not  standing  on  the  same  footing  as  an  advocate;  Ostrom 
v.  Benjamin,  20  Ont.  App.  Rep.  330,  holding  solicitor  who  is  notary  and  acts 
as  such  is  not  bound  by  statutory  regulations  affecting  solicitor's  charges. 

Disapproved  in  Davis  v.  Weber,  CG  Ark.  190,  45  L.E.A.  19G,  74  Am.  St.  Rep. 
81,  49  S.  W.  822,  holding  a  contract  between  an  attorney  and  client,  allowing 
the  former  a  contingent  interest  in  the  subject-matter  of  the  litigation  as  com- 
pensation for  his  services  is  not  void;  British  Columbia  Land  &  Invest.  Agency 
v.  Wilson,  9  C.  B.  412;  Christin  v.  Lacoste,  Rap.  Jud.  Quebec,  2  B.  R.  142; 
McDougall  v.  Campbell,  41  U.  C.  Q.  B.  332,  holding  counsel  has  right  to  maintain 
action  for  fees. 

Contracts  between  attorney  and  client. 

Cited  in  Boardman  v.  Thompson,  25  Iowa,  4S7,  holding  champertous  contracts 
void;  Armour  v.  Kilmer,  28  Ont.  Rep.  618,  holding  that  solicitor  employing 
counsel  has  implied  authority  to  pledge  his  client's  credit  for  payment  of  coun- 
sel fees;  Mostyn  v.  Mostyn,  L.  R.  5  Ch.  457,  39  L.  J.  Ch.  N.  S.  780,  22  L.  T.  N.  S. 
461,  18  Week.  Rep.  656,  holding  solicitor  has  no  authority  to  pledge  his  client's 
credit  to  counsel;  Robertson  v.  Macdonoiigh,  Ir.  L.  R.  6433,  14  Cox,  C.  C.  409, 
holding  advocate  and  client  reciprocally  incapable  of  contracting  for  fees  for 
attendance  on  court. 

Cited  in  Holingsworth  Contr.  281,  on  incapacity  of  attorney  and  client  to  con- 
tract with  each  other;  Weeks  Attys.  2d  ed.  455,  on  authority  of  attorney  for  col- 
lection of  debt  to  release  securities  on  client's  claim;    Weeks  Attys.  2d  ed.  58, 
645,  on  invalidity  of  contract  by  client  to  pay  counsel  for  his  advocacy. 
Defense  of  illegal  transaction  in  action  on  account  stated. 

Cited  in  Nash  Wright  Co.  v.  Wright,  156  111.  App.  243,  holding  that  if  any 
part  of  consideration  entering  into  account  stated  is  illegal,  there  can  be  no  re- 
covery of  any  part  of  claim  under  count  for  account  stated;  Dunbar  v.  Jobnson, 
108  Mass.  519,  holding  it  may  be  pleaded. 

Cited  in  notes  in  27  L.R.A.  819;   1  Eng.  Rul.  Cas.  438,— on  illegality  of  con- 
tract as  defense  to  action  on  account  stated. 
Past  consideration. 

Cited  in  note  in  6  Eng.  Rul.  Cas.  39,  on  expense  already  incurred  as  considera- 
tion for  subsequent  promise  for  reimbursement. 

1  E.  R.  C.  802,  THE  QUEEN  v.  LORDS  COMRS.  OF  TREASURY,  L.  R.  7  Q. 
B.  387,   12   Cox,  C.   C.  277,  20   Week.   Rep.   336,  41   L.  J.   Q.   B.  N.   S.   17S. 
Suits  against  Crown  or  state. 

Cited  in  Hereford  R.  Co.  v.  R.  24  Can.  S.  C.  1,  holding  where  money  is  grant- 
ed by  legislature  and  its  application  prescribed  in  such  a  way  as  to  confer 
a  discretion  upon  the  Crown  no  trust  is  imposed  enforceable  against  the  Crown 
by  petition  of  right;  Atty.  Gen.  v.  Toronto  Junction  Recreation  Club,  8  Ont.  L. 
Rep.  440,  holding  court  has  no  jurisdiction  at  the  suit  of  a  subject  to  restrain 
the  Crown  or  its  officers  acting  as  its  agents  or  or  servants  discharging  discretion- 
ary functions  committed  to  them  by  the  sovereign;  Re  Massey  Mfg.  Co.  13  Ont. 
App.  Rep.  446  (affirming  11  Ont.  Rep.  444),  holding  mandamus  will  be  granted 
to  compel  public  officer  to  perform  a  merely  ministerial  duty;  R.  v.  Secretary  of 
State  [1891]  2  Q.  B.  326,  60  L.  J.  Q.  B.  N.  S.  457,  64  L.  T.  N.  S.  764,  40  Week. 
Rep.  5,  56  J.  P.  105,  holding  that  mandamus  will  not  lie  to  compel  secretary 
of  state  for  war  to  carry  out  terms  of  royal  warrant  regulating  pay  of  soldiers; 


1  E.  R.  C.  802]        NOTES  TO  ENGLISH  RULING  CASES.  144 

R.  v.  Joint  Stock  Companies  Registrar,  57  L.  J.  Q.  B.  N.  S.  433,  L.  R.  21  Q. 
B.  Div.  131,  59  L.  T.  N.  S.  67,  36  Week.  Rep.  695,  52  J.  P.  710,  holding  that 
mandamus  will  not  lie  to  compel  registrar  of  joint  stock  companies  to  file 
contract  insufficiently  stamped;  Dixon  v.  Farrar,  L.  R.  17  Q.  B.  Div.  658,  55  L. 
J.  Q.  B.  N.  S.  497,  55  L.  T.  N.  S.  658,  holding  that  court  is  bound  to  change 
venue  to  county  selected  by  attorney  general,  of  action  against  secretary  of 
board  of  trade  for  damages  for  detention  of  ship. 

Cited  in  notes  in  8  E.  R.  C.  274,  on  right  to  Crown  to  name  court  in  which 
proceedings  against  it  shall  be  had;  16  E.  R.  C.  785,  787,  on  right  to  mandamus 
against  a  public  officer. 

Distinguished  in  Armytage  v.  Wilkinson,  L.  R.  3  App.  Cas.  355,  47  L.  J.  P.  C. 
N.  S.  31,  38  L.  T.  N.  S.  185,  26  Week.  Rep.  559,  holding  that  mandamus  will  lie 
against  master  in  equity  in  relation  to  duties  claimed  by  him  in  his  capacity  of 
revenue  officer  responsible  to  Crown. 
—  Action  to  compel  officers  of  state  to  pay  money. 

Cited  in  Louisiana  v.  Jumel,  107  U.  S.  711,  27  L.  ed.  448,  2  Sup.  Ct.  Rep.  128, 
holding  it  an  action  against  state;  dissenting  opinions  in  United  States  v.  Lee, 
106  U.  S.  196,  27  L.  ed.  171,  1  Sup.  Ct.  Rep.  240;  Butler  v.  Ellerbe,  44  S.  C.  256, 
22  S.  E.  425,  as  to  it  being  an  action  against  the  state;  R.  v.  Inland  Revenue 
Comrs.  L.  R.  12  Q.  B.  Div.  461,  51  L.  T.  N.  S.  46,  53  L.  J.  Q.  B.  N.  S.  229,  32 
Week.  Rep.  543,  48  J.  P.  1252,  holding  that  mandamus  will  not  lie  to  compel 
commissioners  of  Inland  Revenue  to  pay  to  administrator  amount  of  duty  over- 
paid by  him. 
Control  by  court  of  officers  of  state. 

Cited  in  Barnard  v.  Walk  em,  1  B.  C.  120,  as  to  courts  being  loath  to  inter- 
fere. 
Relation  of  Crown  to  its  servants. 

Cited  in  R.  v.  Berriman,  4  Ont.  Rep.  282,  as  to  the  relation. 
Wlien  mandamus  lies. 

Annotation  cited  in  Lauritsen  v.  Seward,  99  Minn.  313,  109  N.  W.  404,  holding 
that  mandamus  will  not  lie  to  determine  election  contest. 


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